This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 03:49:25 (UTC).

ELAINE FERREIRA DE ARAUJO VS JAMES S ANDERSEN MD ET AL

Case Summary

On 12/01/2017 ELAINE FERREIRA DE ARAUJO filed a Personal Injury - Medical Malpractice lawsuit against JAMES S ANDERSEN 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 CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5390

  • Filing Date:

    12/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiffs and Petitioners

DE ARAUJO ELAINE FERREIRA

ARAUJO ELAINE FERREIRA DE

Defendants and Respondents

STONE ROBERT C.E.O.

CITY OF HOPE INC

DOES 1 TO 20

ANDERSEN JAMES S. M.D.

CITY OF HOPE INC.

 

Court Documents

SUMMONS

12/1/2017: SUMMONS

COMPLAINT FOR DAMAGES MEDICAL MALPRAC11CE: (1) BREACH OF STANDARD OF CARE; ETC

12/1/2017: COMPLAINT FOR DAMAGES MEDICAL MALPRAC11CE: (1) BREACH OF STANDARD OF CARE; ETC

Unknown

12/1/2017: Unknown

Minute Order

5/17/2019: Minute Order

 

Docket Entries

  • 06/03/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Vacated

    [+] Read More [-] Read Less
  • 05/17/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

    [+] Read More [-] Read Less
  • 05/17/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

    [+] Read More [-] Read Less
  • 12/01/2017
  • DocketCOMPLAINT FOR DAMAGES MEDICAL MALPRAC11CE: (1) BREACH OF STANDARD OF CARE; ETC

    [+] Read More [-] Read Less
  • 12/01/2017
  • DocketORDER ON COURT FEE WAIVER

    [+] Read More [-] Read Less
  • 12/01/2017
  • DocketComplaint; Filed by Elaine Ferreira De Araujo (Plaintiff); ELAINE FERREIRA DE ARAUJO (Plaintiff)

    [+] Read More [-] Read Less
  • 12/01/2017
  • DocketSUMMONS

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****5390    Hearing Date: February 01, 2021    Dept: 28

Motion for Reconsideration

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants James S. Andersen M.D., City of Hope National Medical Center (erroneously sued as City of Hope, Inc.) (“Defendant City of Hope”), and Robert Stone.  Plaintiff alleged breach of standard of care and professional negligence in the complaint for deficient reconstruction of Plaintiff’s right breast on March 21, 2016 and September 8, 2016.

On August 29, 2019, Plaintiff filed a first amended complaint (“FAC”) for (1) breach of standard of care, (2) professional negligence, and (3) punitive and exemplary damages.  

On November 14, 2019, the Court sustained Defendant Andersen’s demurrer to the FAC as to the breach of standard of care cause of action as being duplicative of the professional negligence cause of action.  The Court also granted Defendants’ motion to strike punitive damages with leave to amend.  

On December 4, 2019, Plaintiff filed a second amended complaint.  

On October 20, 2020, the Court granted Defendant Dr. Andersen’s motion for summary judgment.  Plaintiff did not opposed the motion, but instead, after her opposition was due, Plaintiff filed an ex parte application to continue the hearing of the motion pursuant to Code of Civil Procedure Section 437c, subdivision (h).  The Court denied the application as untimely and lacking in a showing of due diligence.  Plaintiff then made an ex parte application for reconsideration of that denial pursuant to Code of Civil Procedure Section 1008, which the Court denied because Plaintiff provided insufficient notice to Dr. Andersen of the application and because the application lacked “new evidence” as required by Section 1008.  Judgment was entered in favor of Defendant Andersen on October 26, 2020. 

On October 30, 2020, Plaintiff filed an ex parte application to vacate the granting of summary judgment on behalf of Dr. Andersen on the basis that “new evidence” under Section 1008.  The ex parte application was denied on November 2, 2020.  

On December 3, 2020, the Court granted Defendant City of Hope’s motion for summary judgment on the grounds that Plaintiff did not submit sufficient evidence showing a triable issue of material fact as to whether Defendant City of Hope is liable for Plaintiff’s alleged injuries, and Plaintiff did not submit a separate statement in support of her opposition.  Judgment was entered in favor of Defendant City of Hope on December 4, 2020.  

On December 11, 2020, Plaintiff filed an ex parte application for reconsideration of granting summary judgment in favor of Defendant City of Hope.  On December 15, 2020, the Court scheduled a Hearing on Motion for Reconsideration of the Court’s Ruling on the City of Hope National Medical Center’s Motion for Summary Judgment for January 20, 2021 on the basis that a motion for reconsideration cannot be decided on ex parte basis.  

On January 6, 2021, Plaintiff filed an amended motion for reconsideration of the Court’s ruling on Defendant City of Hope’s motion for summary judgment.  

On January 14, 2021, on the Court’s own motion, the hearing on the motion for reconsideration was continued to February 1, 2021. 

PARTYS REQUEST

Plaintiff asks the Court to set aside its December 3, 2020 order granting Defendant City of Hope’s motion for summary judgment and reconsider a declaration of Dr. Handel that was not previously presented due to Plaintiff’s mistake, inadvertence, surprise, or excusable neglect.  

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests for judicial notice of the Declaration of Neal Handel, M.D. F.A.S.C. filed in conjunction with Plaintiff’s Ex Parte Application for Reconsideration filed on December 14, 2020.  There being no objection by Defendant, the request for judicial notice is GRANTED only as to the existence of the document in the Court’s record pursuant to Evidence Code Section 452, subdivision (d).  The Court, however, will not take judicial notice of the truth of the contents of the document.  (See Bach v. McNelis (1989) 207 Cal.App.3d 852, 865.)  

LEGAL STANDARD

Under Code of Civil Procedure Section 1008, subdivision (a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.  The party making the application shall state by affidavit what application was made before, when and to what judge, what order to decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”  

Section 1008 is “the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it” and could not have been considered by it.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)  Section 1008 is the exclusive means for modifying, amending or revoking an order.  That limitation is expressly jurisdictional.”  (Id. at p. 1499.) 

“The burden under section 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. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)  There is a strict requirement or diligence on the moving party; the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)  Evidence obtained after a summary judgment hearing is not ground for reconsideration where there was no showing why evidence could not have been obtained earlier.  (Jones v. P.S. Develop. Co., Inc. (2008) 166 Cal.App.4th 707, 725, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 530.)  

Alternatively, Plaintiff requests for relief under Code of Civil Procedure Section 473.  “The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code Civ. Proc., ; 473, subd. (b).)  “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Id.)  There is no ground for relief under Code of Civil Procedure Section 473, subdivision (b), unless the neglect is shown to have been excusable under the circumstances.  Mere negligence to produce sufficient evidence to oppose a motion does not by itself warrant relief.  (See Cochran v. Linn (1984) 159 Cal.App.3d 245, 251.)  

DISCUSSION

Plaintiff requests relief under Code of Civil Procedure Section 1008, subdivision (a), from the Court’s order granting Defendant City of Hope’s motion for summary judgment or, in the alternative, under Code of Civil Procedure Section 473, subdivision (b).  

Plaintiff argues that she has obtained a signed declaration of Dr. Neal Handel, M.D., F.A.C.S., and that the order granting City of Hope’s motion for summary judgment should be reconsidered in light of Dr. Handel’s declaration.  Plaintiff asserts that Dr. Handel would testify that the care and treatment rendered by Dr. Andersen and the City of Hope surgical team were not within the standard of care for reputable and practicing plastic and reconstructive surgery physicians in Southern California in 2012 and presently, and that the negligent acts by Defendants caused Plaintiff’s alleged injuries.  

Plaintiff states in her declaration that the reason for Plaintiff’s inability to obtain a signed declaration from Dr. Handel was due to inadvertent mistake as well as being consumed with anguish and grief and preoccupied with her two brothers’ illnesses and deaths in Brazil from the Coronavirus.  Plaintiff states that Dr. Handel planned to write a declaration in support of Plaintiff’s opposition to City of Hope’s motion for summary judgment in October 2020.  (Araujo Decl., ¶ 21.)  However, when Plaintiff called Dr. Handel’s office to obtain the declaration, Dr. Handel was out of the country and could not be reached until November 16, 2020.  (Id.)  When Plaintiff called Dr. Handel twice to follow up on November 16, 2020, Plaintiff states that she was notified by Dr. Handel’s assistant that Dr. Handel was not available both times.  (Id., ¶ 22.)  On November 18, 2020, Dr. Handel sent an email to Plaintiff telling her that he was in surgery most of the day.  (Id., ¶ 23.)  On November 18, 2020, Dr. Handel sent Plaintiff his declaration, and Plaintiff filed the declaration on November 19, 2020.  (Id., ¶ 25.)  Plaintiff states that she later found out through the City of Hope’s reply papers that Dr. Handel’s declaration was not signed, and asserts that “due to an inadvertent mistake, Dr. Handel said to [Plaintiff] that he probably forgot to sign his declaration.”  (Id., ¶¶ 26-27.)  Plaintiff states that on December 3, 2020, she received Dr. Handel’s declaration, and filed the declaration through her ex parte application for reconsideration.  (Id., ¶ 29.)  Plaintiff also states that her two brothers passed away in Rio de Janeiro hospital from the Coronavirus, and so was in daily contact by phone with her family monitoring their medical condition.  (Id., ¶ 30.)  Plaintiff states that while in mourning, in hast and inadvertent mistake, she did not sign her declaration in opposition to the summary judgment motion.  (Id., ¶ 32.)  

Jurisdiction for Motion for Reconsideration

As an initial matter, although not addressed by either party, the Court must consider the timeliness of Plaintiff’s motion for reconsideration.  Once judgment is entered, a court cannot entertain or decide a motion for reconsideration.  (See Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606 [“Once judgment has been entered, however, the court may not consider it and loses its unrestricted power to change the judgment.”].)  

Here, Judgment was entered in favor of City of Hope and against Plaintiff on December 4, 2020.  Therefore, the Court finds that as to relief under Code of Civil Procedure Section 1008, the Court lacks jurisdiction because a judgment was entered.  Even if the Court could consider the motion, however, for the reasons discussed below, Plaintiff failed to meet her burden of showing new or different facts, circumstances, or law, any why the evidence to oppose City of Hope’s motion for summary judgment could not have been presented earlier.  

The Court also declines to consider the motion as a “motion for new trial.”  The procedural requirements have not been met.  As Defendant observes in its opposition, Plaintiff did not comply with Code of Civil Procedure Sections 657 and 659.  

Code of Civil Procedure Section 473

The court also finds that Code of Civil Procedure Section 473 is unavailing for relief. The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code Civ. Proc., ; 473, subd. (b).)  Excusable neglect exists where a party acted as a reasonably prudent person would under the circumstances.  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.; Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)  “Surprise” means “some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)  

Plaintiff appears to argue that Dr. Handel’s mistake in failing to timely provide Plaintiff his signed declaration in support of Plaintiff’s opposition to City of Hope’s motion for summary judgment warrants relief under Code of Civil Procedure Section 473, subdivision (b).  However, the Court notes that this lawsuit was initiated by Plaintiff more than three years ago.  Plaintiff also had notice of Defendant City of Hope’s motion for summary judgment since June 8, 2020.  Plaintiff states in her declaration that Dr. Handel did not contemplate writing a declaration in support of Plaintiff’s opposition to City of Hope’s motion for summary judgment until October 2020.  (Araujo Decl., ¶ 21.)  Then, it was only after such time that Plaintiff allegedly attempted to contact Dr. Handel that Plaintiff discovered that Dr. Handel would not be available until November 16, 2020.  When Plaintiff did receive Dr. Handel’s declaration on November 18, 2020, Plaintiff conclusively states that “due to an inadvertent mistake, Dr. Handel said to [Plaintiff] that he probably forgot to sign his declaration.”  (Id., ¶ 27.)  Additionally, Plaintiff cites the passing of her two brothers in Brazil, and Plaintiff’s mourning, as a reason for not signing her declaration in opposition to the summary judgment motion.  (Id., ¶ 30.)  Plaintiff submitted the unsigned declarations of Plaintiff and Dr. Handel with her opposition, which the Court considered, but found to be inadequate. Plaintiff does not explain her failure to file a compliant separate statement in support of her opposition.  

Based on the facts presented by Plaintiff, the Court does not find that Dr. Handel’s signed declaration constitutes a “new fact or circumstance. , the Court finds that Plaintiff has not established that she is entitled to relief under Code of Civil Procedure Section 473, subdivision (b), because she has not established mistake, inadvertence, surprise, or excusable neglect.  Plaintiff does not provide a sufficient explanation as to why a signed Dr. Handel’s declaration could not have obtained with reasonable diligence before the December 3, 2020 hearing on Defendant City of Hope’s motion for summary judgment.  This point is amplified by the fact that Plaintiff apprised the court on October 20, 2020 hearing on Defendant Dr. Andersen’s motion for summary judgment that Plaintiff was attempting to obtain the same declaration of Dr. Handel.  In that instance, Plaintiff failed to file an opposition to Dr. Andersen’s motion for summary judgment all together, despite being served with Dr. Andersen’s motion on May 28, 2020.  The facts do not demonstrate mistake upon Dr. Handel or Plaintiff but, rather, demonstrates that Plaintiff was not reasonably diligent in preparing her opposition to Defendant’s motion for summary judgment.  The court cannot find that Plaintiff acted as a “reasonably prudent person” would under the circumstances to obtain relief under Section 473.  (See Hearn, supra, 177 Cal.App.4th at p. 1206.)  

The facts of this case are similar to those presented in Burnete v. La Casa Dana Apartments (2007) 148 Cal. App. 4th 1262.  There, a pro per plaintiff’s case was terminated at trial via the defendant’s motion for non-suit.  The plaintiff subsequently realized that he had made a mistake representing himself and requested that the trial court set aside the judgment.  The trial court declined to do so and the plaintiff appealed.  The Court of Appeal upheld the judgment against the Plaintiff.  In doing so, the Court observed, 

"When  a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].’ [Citations.]” (County of Orange v. Smith Rptr. 3d 383].) In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.”

Burnete v. La Casa Dana Apartments, supra, 148 Cal. App. 4th at 1267.

The Court here repeatedly admonished Plaintiff that she had to follow the same rules as did counsel.  Plaintiff knew from the Court’s granting summary judgment on behalf of James Anderson that she needed a signed declaration from an expert to oppose such a motion.  Yet, despite these admonitions, Plaintiff continually missed discovery deadlines and filed late papersProcedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.” Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 979.

CONCLUSION

The motion is DENIED.

Defendant City of Hope is ordered to give notice of this ruling.

Defendant City of Hope is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: ****5390    Hearing Date: December 03, 2020    Dept: 28

Motion for Summary Judgment

Having considered the moving, opposing, and reply papers, the Court rules as follows.

The Court notes that the opposing and reply papers were not properly efiledDefendant City of Hope National Medical Center emailed the opposing and reply papers to Department 28’s law clerk.  That email was subsequently forwarded to Plaintiff.

BACKGROUND

On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants James S. Andersen M.D., City of Hope National Medical Center (erroneously sued as City of Hope, Inc.) (“Defendant City of Hope”), and Robert Stone.  Plaintiff alleged breach of standard of care and professional negligence in the complaint for deficient reconstruction of Plaintiff’s right breast on March 21, 2016 and September 8, 2016.

On June 9, 2020, Defendant City of Hope filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

A trial setting conference is scheduled for December 3, 2020.

PARTYS REQUEST

Defendant City of Hope asks the Court to enter summary judgment against Plaintiff and in Defendant City of Hope’s favorDefendant City of Hope submits an expert’s declaration that opines Defendant City of Hope complied with the relevant standard of care and did not cause Plaintiff’s harm.

LEGAL STANDARD

The purpose of a motion for 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. Atl. 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 “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.”  (Code Civ. Proc., ; 437c, subd. (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.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi, supra, 159 Cal.App.4th at p. 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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)

DISCUSSION

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, 701-702 [citations omitted]. “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 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.)

Defendant City of Hope submits the declaration of board-certified plastic surgeon James Wethe, M.D.  Dr. Wethe submitted his qualifications.  (Wethe Decl., 2, Exh. A.)  Dr. Wethe reviewed Plaintiff’s medical records from Defendant City of Hope.  (Wethe Decl., 6.) Wethe listed the relevant medical facts.  (Wethe Decl., 8.)

Dr. Wethe opined as to the following.  Defendant City of Hope’s staff and Dr. James Andersen complied with their applicable standard of care.  (Wethe Decl., 10.) Wethe Decl., ¶¶ 11-12, 14.)  Moreover, Defendant City of Hope’s staff, employees, and nursing personnel did not perform any substantial part of Plaintiff’s surgical procedures.  (Wethe Decl., 15.)  

The Court finds Defendant City of Hope has met its burden.  Dr. Wethe’s declaration shows the surgical procedures upon which Plaintiff’s complaint is based were performed without complications.  Thus, the burden shifts to Plaintiff.

Plaintiff submits her declaration and the declaration of board-certified plastic surgeon Neal Handel M.D., F.A.S.C.  However, neither of these declarations are signed under penalty of perjury.  These declarations have no evidentiary value.  (See Code Civ. Proc., ; 2015.5 [requiring declarations to be signed under penalty of perjury]; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 [requiring declarations to strictly comply with section 2015.5].)

Moreover, Plaintiff has not submitted a separate statement in support of Plaintiff’s opposition.  This is sufficient grounds to grant the motion.  (See Code Civ. Proc., ; 437c(b)(3).)

CONCLUSION

The motion is GRANTED.

Defendant City of Hope is ordered to give notice of this ruling.

Defendant City of Hope is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: ****5390    Hearing Date: October 20, 2020    Dept: 28

Motion for Summary Judgment

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants James S. Andersen M.D. (“Defendant Anderson”), City of Hope Inc., and Robert Stone.  Plaintiff alleged breach of standard of care and professional negligence in the complaint for deficient reconstruction of Plaintiff’s right breast on March 21, 2016.

On November 14, 2019, the Court sustained Defendant Andersen’s demurrer as to the breach of standard of care cause of action.

On May 28, 2020, Defendant Andersen filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

A trial setting conference is scheduled for December 3, 2020.

PARTYS REQUEST

Defendant Andersen asks the Court to enter summary judgment against Plaintiff and in Defendant Andersen’s favorDefendant Andersen submits an expert’s declaration that opines Defendant Andersen complied with the relevant standard of care and did not cause Plaintiff’s harm.

LEGAL STANDARD

The purpose of a motion for 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. Atl. 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 “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.”  (Code Civ. Proc., ; 437c, subd. (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.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi, supra, 159 Cal.App.4th at p. 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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)

DISCUSSION

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, 701-702 [citations omitted]. “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 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.)

Defendant Andersen submits the declaration of Jay Orringer, M.D., F.A.C.S., a board certified plastic surgeon.  Dr. Orringer submitted his qualifications.  (Orringer Decl., ¶¶ 1-2, Exh. A.)  Dr. Orringer reviewed records from Defendant City of Hope regarding Plaintiff.  (Orringer Decl., 3.)

On April 28, 2004, Plaintiff underwent right mastectomy with lymph node dissection and immediate reconstruction with placement of a sub-muscle tissue expander performed by Dr. Melvin Silverstein.  (Orringer Decl., 5.)  From 2004 through 2006, Plaintiff underwent four reconstructive breast surgeries performed by Dr. Sherman.  (Orringer Decl., 6.)  During that same time, Plaintiff underwent pectoral nerve division for animation deformity.  (Ibid.)

On May 8, 2013, Plaintiff presented to Defendant City of Hope complaining of breast distortion, deformity, and asymmetry.  (Orringer Decl., 7.)  Defendant Andersen met with Plaintiff and they discussed multiple options for addressing Plaintiff’s complaints.  (Ibid.)  Defendant Andersen discussed complications including breast asymmetry, donor site deformity, partial or total flap loss, hypertrophic wound scar formation, bleeding, infection, the need for additional surgeries, and anesthetic risks.  (Ibid.)

On September 5, 2012, Plaintiff was informed of options for breast reconstruction including TRAM surgery and latissimus flap surgery.  (Orringer Decl., ¶ 9.)  Plaintiff was informed that TRAM surgery would have a better aesthetic appearance and the breast would behave and appear more natural than if she underwent latissimus flap with implant surgery.  (Ibid.Plaintiff acknowledged that latissimus flap surgery would not achieve the best aesthetic result, but was willing to compromise on the appearance of her right breast to avoid the abdominal scar location.  (Ibid.)  Dr. Andersen discussed risks and appearance concerns of the surgery with Plaintiff and Plaintiff verbalized that she understood this was not what Dr. Andersen considered to be the optimal operation, but nevertheless wished to proceed.  (Ibid.)  On multiple subsequent appointments, Dr. Andersen and Plaintiff discussed concerns of aesthetic complications and the high likelihood that symmetry could never be achieved to Plaintiff’s satisfaction.  (Ibid.)

On January 23, 2013, Defendant Andersen warned Plaintiff of the risk of nerve damage in relation to the latissimus flap surgery.  (Orringer Decl., 8.)  On March 21, 2016, Plaintiff signed an anesthesia consent form in preparation of the latissimus flap surgery, which included as potential complications loss of sensation and limb function.  (Ibid.) Plaintiff signed a general consent form agreeing to the latissimus flap surgery, acknowledging that all risks were discussed, and Defendant Andersen answered all questions.  (Ibid.)

Dr. Orringer opined that Defendant Andersen achieved a good final cosmetic result.  (Orringer Decl., 10.)  This was particularly so because Plaintiff had multiple prior surgical procedures.  (Ibid.)

On July 27, 2016, Plaintiff saw neurologist Irina Chilian, M.D. for concerns of nerve damage and complaining of a burning sensation in her arm.  (Orringer Decl., 12.)  Dr. Chilian concluded the issues were related to and likely caused by Defendant Andersen’s surgery.  (Ibid.)

Dr. Orringer opined that nerve injuries are known and accepted risks and complications of latissimus flap surgery.  (Orringer Decl., 13.)  This is especially so when following multiple prior surgical procedures.  (Ibid.)  Moreover, nerve injuries can and do occur in the absence of negligence.  (Ibid.)  Dr. Orringer concluded that Defendant Andersen complied with his standard of care and did not cause Plaintiff’s injuries.  (Ibid.)

The Court finds Defendant Andersen met his burden.  Dr. Orringer’s explanation reasoning in concluding that Defendant Andersen complied with his standard of care and did not cause Plaintiff’s injuries is minimal, but sufficient.  Dr. Orringer is essentially declaring that Defendant Andersen’s surgery looked good and Plaintiff’s injuries were caused in the absence of Defendant Andersen’s negligence.  This is because Plaintiff’s nerve damage is the sort of injury that occurs in the absence of negligence and particularly after undergoing multiple other surgical procedures.  The burden shifts to Plaintiff.  Plaintiff has not submitted a contradicting expert declaration or any opposing papers.  Accordingly, summary judgment is properly granted.

CONCLUSION

The motion is GRANTED.

Defendant Andersen is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: ****5390    Hearing Date: August 05, 2020    Dept: 28

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One)

Having considered the moving papers, the Court rules as follows. opposing papers have been filed.

BACKGROUND

On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants James S. Andersen M.D., City of Hope National Medical Center (erroneously sued and served as City of Hope, Inc.), and Robert Stone, C.E.O.  Plaintiff alleges medical malpractice and breach of a standard of care in the complaint for deficient care rendered on March 21, 2016.

On August 29, 2019, Plaintiff filed a first amended complaint where only Defendants James S. Andersen M.D. and City of Hope National Medical Center (erroneously sued and served as City of Hope, Inc.) were named defendants.

On November 14, 2019, the Court sustained a demurrer to Plaintiff’s breach of a standard of care cause of action in the first amended complaint.  The Court also granted a motion to strike punitive damages from the first amended complaint.

On December 4, 2019, Plaintiff filed a second amended complaint.

On June 30, 2020, Defendant filed motions to compel responses to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) pursuant to California Code of Civil Procedure sections 2030.290 and 2031.300.

On February 10, 2020, the Court continued the hearings on Defendant’s discovery motions to April 9, 2020.

On March 20, 2020, the Court continued the hearings on Defendant’s discovery motions to May 29, 2020.

On April 21, 2019, the Court continued the hearings on Defendant’s discovery motions to August 21, 2020.

On June 2, 2020, the Court advanced the hearings on Defendant’s discovery motions to July 31, 2020.

Trial is set for September 22, 2020.

PARTYS REQUEST

Defendant City of Hope National Medical Center (“Moving Defendant”) asks the Court to compel Plaintiff to serve verified responses without objections to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents (All Set One) within ten days of the hearing.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (Code Civ. Proc., ; 2030.290, subd. (b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response.  (Code Civ. Proc., ; 2031.300, subd. (b).)  Failure to timely respond waives all objections, including privilege and work product.  (Code Civ. Proc., ; 2031.300, subd. (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.  There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Under California Code of Civil Procedure section 2023.030, subd. (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.”  Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code Civ. Proc., ; 2023.010.)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents 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.”  (Code Civ. Proc., ;; 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) states: “[t]he 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.”

DISCUSSION

On September 30, 2019, Moving Defendant served Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) on Plaintiff by U.S. mail.  (All Three Goethals Declarations (“Goethals Decl.”), ¶ 2.)  Moving Defendant gave Plaintiff three extensions, providing an ultimate deadline of January 24, 2020 to provide the outstanding responses. Goethals Decl., ¶ 4-6, Exh. B-D.)  Defendant had not received the outstanding responses as of the time Patrick J. Goethals signed his declarations on April 9, 2020.  (Goethals Decl., ¶ 7.)

The motions are properly granted.  Moving Defendant served discovery requests and Plaintiff failed to serve responsesWhile sanctions may be properly imposed, Moving Defendant did not ask for sanctions.  Thus, the Court does not award sanctions.

CONCLUSION

The motions are GRANTED.

Plaintiff is ordered to serve verified responses without objections to Moving Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) within 20 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: ****5390    Hearing Date: November 14, 2019    Dept: 4A

Demurrer with Motion to Strike (x2)

Having considered the moving, demurring, and opposing papers, the Court rules as follows.

BACKGROUND

On December 1, 2017, Plaintiff Elaine Ferreira De Araujo (“Plaintiff”) filed a complaint against Defendants City of Hope National Medical Center (erroneously sued and served as City of Hope, Inc.), James S. Andersen, M.D., and Robert Stone, C.E.O. alleging breach of standard of care, medical malpractice, and punitive damages for a deficient reconstructive surgery that occurred on March 21, 2016.

On April 29, 2019, Plaintiff filed a first amended complaint (“FAC”) against Defendants City of Hope National Medical Center and James S. Andersen, M.D. alleging the same causes of action and similar facts as in the initial complaint.

On September 30, 2019, Defendant City of Hope National Medical Center filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and motion to strike pursuant to California Code of Civil procedure section 435.

On October 7, 2019, Defendant James S. Andersen, M.D. filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and motion to strike pursuant to California Code of Civil procedure section 435.

A trial setting conference is set for November 14, 2019.

PARTIES REQUESTS

Defendants City of Hope National Medical Center and James S. Andersen, M.D. (“Defendants”) ask the Court to sustain their demurrers to Plaintiff’s FAC because the breach of standard of care and medical malpractice causes of action are duplicative.  

Defendants also ask the Court to strike punitive damages to the FAC because Plaintiff has not sought leave to file an amended complaint seeking punitive damages and insufficient facts have been alleged to support a request for punitive damages.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer or a motion to strike, the demurring and moving parties are required to meet and confer in person or by telephone with the party who filed the pleading sought to be stricken or demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike.  (Code of Civ. Proc. ;; 430.41, subd. (a), 435.5, subd. (a).)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at p. 747.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole complaint or any part thereof.  (Code of Civ. Proc. ; 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc. ; 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  Conclusory allegations are subject to motions to strike.  (Covenant Care, Inc. v. Superior Court (2001) 107 Cal.Rptr.2d 291, 303 (superseded on other grounds by Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771).)

A party must obtain leave of court to seek punitive damages in an action for damages arising out of the professional negligence of a health care provider.  (Code Civ. Proc. ; 425.13, subd. (a).

DISCUSSION

Meet and Confer

The Court finds that Defendants have fulfilled the meet and confer requirement prior to filing these demurrers and motions to strike. (See Both Declarations of Patrick J. Goethals, Esq., ¶ 3; see also Both Declarations of Bryan C. Misshore, Esq., 3.)

Demurrer

Plaintiff writes in her opposition that she will stipulate to the Defendants’ proposed order on page two in Exhibit 1.  (Opposition, p. 3:2-3:3.)  That page of the proposed order has a part of the order circled and starred.  That portion of the proposed order reads that the demurrer to the first cause of action for breach of standard of care and the second cause of action for professional negligence is sustained with leave to amend to allege a single cause of action for medical negligence.  (Opposition, Exh. 1, p. 2:1-2:3.)

The second part of the proposed order that addresses the demurrer to the third cause of action for punitive and exemplary damages is not circled or starred.  Plaintiff has not conveyed a desire to stipulate to striking these allegations.  In fact, Plaintiff argues that Defendants fail to demonstrate that their motions to strike are meritorious.  (Opposition, pp. 2:28-3:1.)

The Court finds that the above stated facts show Plaintiff wishes to stipulate only to the sustaining of the demurrers to the breach of standard of care cause of action as being duplicative of the professional negligence cause of action.

Motion to Strike

There has been no Court order allowing Plaintiff to file an amended complaint to seek punitive damages against any Defendant in this action.  As such, Plaintiff  has not complied with California Code of Civil Procedure section 425.13 so her request for punitive damages in the FAC is improper.

CONCLUSION

The Court SUSTAINS the demurrers to the breach of standard of care cause of action as being duplicative of the professional negligence cause of action.

The Court GRANTS the motions to strike punitive damages.

The Court strikes the language at page 6, lines 5-8 of the FAC, which states: “Third cause of action for punitive and exemplary damages against the Defendant individually; and . . . punitive and exemplary damages against the City of Hope to be determined at the time of trial.”

Plaintiff may file an amended complaint within 20 days of this ruling.

Defendants are ordered to give notice of this ruling.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CITY OF HOPE is a litigant