This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 06:55:53 (UTC).

MARTHA ESTERLINE VS JEFFREY C CHONG ET AL

Case Summary

On 12/15/2017 MARTHA ESTERLINE filed a Personal Injury - Medical Malpractice lawsuit against JEFFREY C CHONG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6851

  • Filing Date:

    12/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

ESTERLINE MARTHA

Defendants and Respondents

CHONG JEFFREY C. MD

CENTURY MEDICAL GROUP

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GAMBARDELLA STEVEN C. ESQ.

 

Court Documents

COMPLAINT FOR DAMAGES: MEDICAL NEGLIGENCE

12/15/2017: COMPLAINT FOR DAMAGES: MEDICAL NEGLIGENCE

SUMMONS

12/15/2017: SUMMONS

 

Docket Entries

  • 12/15/2017
  • DocketComplaint; Filed by Martha Esterline (Plaintiff)

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  • 12/15/2017
  • DocketSUMMONS

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  • 12/15/2017
  • DocketCOMPLAINT FOR DAMAGES: MEDICAL NEGLIGENCE

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Tentative Rulings

Case Number: ****6851    Hearing Date: January 27, 2021    Dept: 28

Motion to Tax Costs

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

BACKGROUND

On January 24, 2019, Plaintiff Gustavo Salazar (“Plaintiff”) filed this action against Defendant Bharat Patel (“Defendant”) alleging causes of action for (1) medical battery, (2) intentional infliction of emotional distress, (3) professional negligence, (4) breach of fiduciary duty, and (5) lack of informed consent. Plaintiff alleges that Defendant negligently performed a transurethral microwave therapy procedure. 

On September 10, 2020, the Court granted Defendant’s motion for summary judgment.

On October 16, 2020, Plaintiff filed the instant motion seeking to tax costs.

On January 12, 2021, Defendant opposed.

On January 20, 2021, Plaintiff filed a reply.

PARTYS REQUEST

Defendant asks the Court to tax at least $1,200 for deposition costs or alternatively any amount the Court deems just and proper.

LEGAL STANDARD

Code of Civ. Proc. ;1033.5(c) states, in relevant part: “Any award for costs shall be subject to the following: 

(1) Costs are allowable if incurred, whether or not paid. 

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. 

(3) Allowable costs shall be reasonable in amount. 

(4) Items not mentioned in this section . . . may be allowed . . . in the Court’s discretion.”

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. This means that the prevailing party is entitled to all of his costs unless another statute provides otherwise. Absent such statutory authority, the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (citations and internal quotations omitted); Code of Civ. Proc. ; 1032, subd. (b). 

Initial verification of a bill of costs is prima facie evidence of the reasonable necessity of the claimed costs, and there is no requirement that copies of bills, invoices, statements or other supporting documentation be attached to the bill of costs; however, if costs have been put in issue by a motion to tax costs, the burden shifts to the party claiming costs to establish reasonableness. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) 

DISCUSSION

The only dispute is to the $2,907.43 sought amount for deposition costs, specifically the $2,077.34 sought for Defendant’s deposition ($307.90 for taking and $1,769.44 for transcribing).

In the motion, Plaintiff argues that Defendant fails to substantiate the amount for Defendant’s deposition. Additionally, Plaintiff argues that Defendant’s deposition, done via Zoom, should not have cost more than Plaintiff’s deposition considering Plaintiff’s deposition was longer in page length and included more exhibits. More problematically, Defendant’s deposition was much shorter than his deposition in a companion case.

In opposition, Defendant argues that the sought amount is incorrect because of a clerical error. The sought amount should have been $733.40 ($425.50 for taking and $307.90 for transcribing). Defendant includes a copy of the invoice for the transcription and counsel’s attorney fees as invoiced. Accordingly, Defendant only seeks $2,572.81 for deposition costs in the memorandum of costs.

In reply, Plaintiff argues that Defendant’s claim of a “clerical error” is unreasonable because the real numbers are completely different amounts. Plaintiff also argues that Defendant cannot recover attorney fees in defending the deposition.

The court agrees with Plaintiff.  Bases upon the billing defense counsel provides, Defendant appears to be claiming $425.50 in attorney’s for having taken the deposition.

Accordingly, the Court grants Plaintiff’s motion in part by taxing $1,769.44 from the sought deposition costs, leaving a total of $1,137.99 for this item.

CONCLUSION

The motion to tax costs is GRANTED IN PART.

Defendant’s charges for deposition cost are taxed in part from the total cost of $2,907.43, leaving a new total for deposition costs of $1,563.49, and a grand total of costs of $2,099.37.

Plaintiff is ordered to give notice of this ruling.

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



Case Number: ****6851    Hearing Date: September 10, 2020    Dept: 28

Motion for Summary Judgment

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

BACKGROUND

On January 24, 2019, Plaintiff Gustavo Salazar (“Plaintiff”) filed this action against Defendant Bharat Patel (“Defendant”) alleging causes of action for (1) medical battery, (2) intentional infliction of emotional distress, (3) professional negligence, (4) breach of fiduciary duty, and (5) lack of informed consent. Plaintiff alleges that Defendant negligently performed a transurethral microwave therapy procedure. 

On May 5, 2020, Defendant filed a motion for summary judgment on the grounds that Plaintiff consent to the procedure, and Defendant complied with the relevant standard of care. Plaintiff opposed on June 27, 2020. Defendant replied on September 4, 2020. 

A trial setting conference is also scheduled for September 10, 2020. 

PARTYS REQUEST

Defendant asks the Court to enter summary judgment against Plaintiff and in Defendant’s favor on the grounds that Plaintiff’s complaint is untimely, and based on Defendant’s own sworn declaration that he complied with his standard of care when performing the procedure to which Plaintiff consented, and that Defendant engaged in no outrageous conduct for purposes of the intentional infliction of emotional distress claim.

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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

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

DISCUSSION

Statute of Limitations

First. Defendant contends that all of Plaintiff’s claims are barred by the applicable statute of limitations. 

Plaintiff’s claim for medical battery is governed by a two-year statute of limitations. (Code Civ. Proc. ; 335.1.) Plaintiff alleges that he underwent the transurethral microwave therapy procedure (“TUMT”) on July 15, 2016. (Compl. ¶ 10.) Defendant argues that “[t]he TUMT procedure occurred on August 9, 2016. Consequently, the statutory deadline for Plaintiff to bring a claim for Medical Battery against Dr. Patel expired on August 9, 2018.” (Motion 7:11-12.) A review of the parties’ respective separate statements reveals that Plaintiff underwent “Cystoscopy, Optical Urethrotomy, Bilateral Ureteroscopy, and Transrectal Biopsy of the Prostate” on July 15, 2016, and underwent TUMT on August 9, 2016. (UMF 3, 6.) In Daley v. Regents of University of California, the court affirmed a trial court order finding that a claim for medical battery sounding in professional negligence was governed by the two-year statute of limitations of Code Civ. Proc. ; 335.1 (Daley v. Regents of Univ. of California (2019) 39 Cal. App. 5th 595, 607.) Thus, Defendant meets his burden of demonstrating that the statute of limitation for the battery claim ran on August 9, 2018, and that Plaintiff filed this action on January 24, 2019, outside of the two-year window.

Similarly, Plaintiff’s intentional infliction of emotional distress claim has a two-year statute of limitations. (Code Civ. Proc. ; 335.1.)

and derivative breach of fiduciary duty/lack of informed consent claims have a statute of limitations of 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. (Code Civ. Proc. ; 340.5.) Although Defendant cites to little to no evidence in his memorandum, a review of the separate statement reveals that Plaintiff testified that a week after the TUMT, Plaintiff complained to Defendant of pain and bleeding during urination. (Pl. Depo. 57:23-58:14.). Additionally, Plaintiff explicitly testifies that he “figured out” that he was injured “a couple month [sic] after the procedure;” the “procedure” referring to TUMT. (Id. 16:20-22, 17:3-11.) 

Q:And so by the end of the year 2016, you knew that you were injured as a result of the

A:For sure I did

Q:Let me finish my question. By the end of the year 2016, you knew that you were injured as the result of the procedure performed by Dr. Patel; correct?

A:Yes.

(Id. 17:22-18:3.)

Thus, at the very latest, Plaintiff was aware of the injury at the end of 2016. At the latest, the two-year statute of limitations would run in December 2018, and the one-year statute of limitation would run in December 2017. 

Based on the foregoing, Defendant has demonstrated the non-existence of a triable issue as to the statute of limitations of Plaintiff’s claims. The burden shifts to Plaintiff. 

Plaintiff argues that “[i]t is undisputed that Plaintiff was injured by the acts of Dr. Patel, but there remains an issue of when the injury commenced the statute of limitations.” (Opp. 7:10-11.) This argument runs against Plaintiff’s own deposition testimony that he knew that he was injured by Defendant in late 2016. (Pl. Depo. 18:1-3.) Plaintiff makes a belabored argument that Plaintiff cannot rely on his own non-medical opinion of whether he was injured or not, and that “It is unwise to rely on the opinion of a non-medical professional in determining when something medically wrong went awry,” but others no authority for the proposition that a Plaintiff is unable to determine when an injury has occurred. (Opp. 7:23-24.) Again, Plaintiff explicitly testified that he knew he was injured by Defendant in late 2016, not that he was ill or suffered from a condition, but that Defendant had injured him. (Pl. Depo. 17:17-21, 18:1-3.) 

Even considering Plaintiff’s argument that Plaintiff was unable to determine that he was injured and that his testimony is thus worthless, Plaintiff’s position that the statute of limitations did not begin running until the “most dispositive treatment for purposes of the commencing of the one-year time limitation [which] was Dr. Barba ordering a post masturbation urinalysis on March 13, 2018” is unavailing. (Opp. 9:25-26.) Plaintiff provides no authority for this argument, and makes no mention of the fact that Plaintiff testified that in February 2017, a Dr. Barba indicated his surprise that a TUMT was performed as “that procedure is not meant for young people because the consequence that they could have.” (Pl. Depo. 79:3-5.) This argument would not save the professional negligence claims as a timely filing of the complaint would extend only to February 2018. Again, Plaintiff raises an argument without authority or evidentiary support:

[n]o reasonable doctor that is properly treating a new patient would be able to develop an opinion about the acts of another doctor after on! on appointment. It took multiple follow-up appointments throughout 2017, with multiple urinalysis an MRI's of the prostates completed, for Dr. Barba to finally urge Plaintiff to see a urology infertility expert for further advice. Finally, during a May 2018 visit, Dr. Barba determined that his treatment to Plaintiff was no longer working and Plaintiff had to seek the advice of a urology expert. As such Plaintiffs one-year time limitation began to run after this appointment in May 2018 because Dr. Barb~ had no further solutions that would have benefitted Plaintiff.

(Opp. 9:14-21.)

Portions of Plaintiff’s testimony, which were not cited by Defendant, reflect that when Plaintiff complained to Defendant during follow-up visits about bleeding and pain during urination, Defendant responded that such symptoms were “totally normal,” and “normal side-effects” of the TUMT. (Pl. Depo. 58:19, 21.) Plaintiff also testified that after Defendant “gave [Plaintiff] again the permission to masturbate,” and Plaintiff produced blood and was concerned about whether such happening was normal, Defendant informed him that it was totally normal, and to give it more time. (Id. 62:17-23.) At the last follow-up visit, Defendant repeated the same instructions, and told Plaintiff to give it more time. (Id. 63:23.) 

However, Plaintiff also testified that the first time he realized that he was injured by Defendant was in December 2016, when he was in Guatemala. (Id. 66:21-67:2.)  When questioned whether in his mind, Plaintiff believed that he was “injured as the result of the thermotherapy” in January 2017, Plaintiff repeated that he became concerned of an injury in December 2016. (Id. 72:21-73:8.) Arguments that Defendant reassured Plaintiff that his symptoms were normal in the weeks following the August 9, 2016, procedure do not create a triable issue when Plaintiff explicitly testified as to his awareness of an injury months later in December 2016, when the bleeding and pain symptoms had subsided, but Plaintiff experienced alternative disfunction. (Pl. Depo. 73:1-8.) Although Defendant’s reassurances may have delayed Plaintiff’s discovery of his injury following the August 9, 2016, procedure, this evidence does not conflict with Plaintiff’s testimony that he was certain of an injury in December 2016.

“[W]hen the patient's “reasonably founded suspicions [have been aroused],” and she has actually become alerted to the necessity for investigation and pursuit of her remedies, the one-year period for suit begins.” (Gutierrez v. Mofid (1985) 39 Cal. 3d 892, 897.) Here, Plaintiff testified that he knew of an injury in December 2016; and that he wanted “to figure out what happened here.” (Pl. Depo. 73:7-8.) This knowledge and arousal of Plaintiff’s reasonably founded suspicions began the running of the statute of limitations.

Based on the foregoing, Plaintiff has not created a triable issue as to the timeliness of his claims. The statute of limitation began to run in December 2016, rendering the January 2019 filing of the Complaint untimely as to the applicable one- and two-year windows. 

CONCLUSION

The motion for summary judgment is GRANTED.

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: ****6851    Hearing Date: August 24, 2020    Dept: 28

Motion to Deem Matters in Request for Admissions (Set One) as True

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

BACKGROUND

On December 15, 2017, Plaintiff Martha Esterline (“Plaintiff”) filed a complaint against Defendants Jeffrey C. Chong, M.D. and Century Medical Group.  Plaintiff alleges medical malpractice in the complaint for a cancer misdiagnosis that occurred between April of 2011 and September 2016.

On February 18, 2020, Defendant Jeffrey C. Chong, M.D. filed a motion to deem the matter in Request for Admissions (Set One) as true against Plaintiff pursuant to California Code of Civil Procedure section 2033.280, subdivision (b).

A trial setting conference is scheduled for August 24, 2020.

PARTIES REQUESTS

Defendant Jeffrey C. Chong, M.D. (“Moving Defendant”) asks the Court to deem the matters in Request for Admissions (Set One) as true against Plaintiff because she failed to serve timely responses.

Moving Defendant also asks the Court to impose $550.00 in monetary sanctions against Plaintiff and her counsel of record, jointly and severally, for abusing the discovery process.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc., ; 2033.280, subd. (c).)

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 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., ; 2033.280, subd. (c).)

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

DISCUSSION

On December 23, 2019, Moving Defendant served Request for Admissions (Set One) on Plaintiff by U.S. mail.  (Duggan Decl., ¶ 5, Exh. A.)  Moving Defendant has not received a response from Plaintiff as of the time Ronan J. Duggan signed his declaration on February 11, 2020.  (Duggan Decl., ¶ 6.)

The Court finds the motion is properly granted.  Moving Defendant served Request for Admissions (Set One) on PlaintiffPlaintiff did not serve a timely response.  There are no facts alleged showing Plaintiff or Plaintiff’s counsel acted with a substantial justification or sanctions would otherwise be unjust.

Moving Defendant’s request for $550.00 in sanctions for this straight-forward motion is unreasonable.  Rather, the Court finds $350.00 is a reasonable amount of sanctions to be imposed against Plaintiff and her counsel of record, jointly and severally, for their abuse of the discovery process.

CONCLUSION

The motion is GRANTED.

The matters in Moving Defendant’s Requests for Admission (Set One) served on Plaintiff are deemed to be admitted against Plaintiff.

Plaintiff and her counsel of record are ordered to pay Moving Defendant $350 within 30 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.

Motion for Summary Judgment

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

BACKGROUND

On December 15, 2017, Plaintiff Martha Esterline (“Plaintiff”) filed a complaint against Defendants Jeffrey C. Chong, M.D. and Century Medical Group.  Plaintiff alleges medical malpractice in the complaint for a cancer misdiagnosis that occurred between April of 2011 and September 2016.

On March 12, 2020, Defendant Jeffrey C. Chong, M.D. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

On April 20, 2020, the Court continued the hearing on the motion for summary judgment to August 24, 2020.

A trial setting conference is scheduled for August 24, 2020.

PARTYS REQUEST

Defendant Jeffrey C. Chong, M.D. (“Moving Defendant”) asks the Court to enter summary judgment against Plaintiff and in Moving Defendant’s favor based on an expert’s opinion that Moving Defendant complied with his 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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, 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.)

Moving Defendant submits the declaration of physician Lyle Kurtz, M.D., who specializes in internal medicine, in support of Moving Defendant’s motion for summary judgment.  Dr. Kurtz provided the relevant qualifications.  (Kurtz Decl., ¶ 2, Exh. A.)  Dr. Kurtz reviewed Plaintiff’s complaint and medical records from Moving Defendant.  (Kurtz Decl., ¶ 5.)  Dr. Kurtz recited the relevant medical facts.  (Kurtz Decl., ¶¶ 6A-6EE.) Dr. Kurtz provided a variety of opinions in finding Moving Defendant’s treatment of Plaintiff was within the applicable standard of care and Moving Defendant did not cause Plaintiff’s harm.  (Kurtz Decl., ¶ 8-13.)  

Moving Defendant treated Plaintiff starting in June of 2007 and Plaintiff’s last visit was on July 11, 2016.  (Kurtz Decl, 9.)  Moving Defendant saw Plaintiff for various ailments, medical treatment, and prescription refills.  (Ibid.)  Moving Defendant provided proper medicine prescriptions, prescription of imaging studies, and referrals to specialists to address the complaints Plaintiff had.  (Ibid.)

On June 29, 2007 and on August 20, 2015, Plaintiff complained of abdominal issues.  (Kurtz Decl., 10.)  Moving Defendant appropriately referred Plaintiff to a gastroenterologist specialist.  (Ibid.Plaintiff did not go to a gerontologist as a result of the August 2015 referral.  (Ibid.)  On November 9, 2015, Plaintiff returned to Moving Defendant and reported her gastrointestinal symptoms had resolved with a change in diet.  (Ibid.)  The standard of care did not require Moving Defendant to insist that Plaintiff was to go see the specialist since Plaintiff reported her symptoms had resolved.  (Ibid.)

Plaintiff never presented signs of symptoms that classically show colon cancer or signs that should have triggered further investigations from Moving Defendant.  (Kurtz Decl., 11.)  Moving Defendant’s standard of care did not require an order of a colonoscopy.  (Kurtz Decl., 12.)  It was the gastroenterologist specialists’ duty to order a colonoscopy.  (Ibid.)  Moreover, Plaintiff did not present signs or symptoms to Moving Defendant that mandated the performance of a colonoscopy.  (Ibid.)

The Court finds Dr. Kurtz’s declaration is sufficient.  Moving Defendant properly treated Plaintiff in ordering the appropriate referrals to address Plaintiff’s abdominal pain.  A combination of Plaintiff’s symptoms subsiding and Plaintiff’s failure to adhere to Moving Defendant’s referrals led to the late diagnosis of Plaintiff’s cancer.  Further, Moving Defendant’s duty of care did not require Moving Defendant to perform a colonoscopy in order to diagnose Plaintiff’s cancer or lack thereof.  The burden shifts to Plaintiff.  Plaintiff has not submitted an opposition.  As such, summary judgment is properly granted.

CONCLUSION

The motion is GRANTED.

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: ****6851    Hearing Date: February 07, 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.

BACKGROUND

On December 15, 2017, Plaintiff Martha Esterline (“Plaintiff”) filed a complaint against Defendants Jeffrey C. Chong, M.D. and Century Medical Group.  The complaint alleges medical malpractice for a failure to diagnose cancer between April 2011 and September 2016.

On January 6, 2020, Defendant Jeffrey C. Chong, M.D. filed motions to compel Plaintiff to provide verified responses without objections 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. 

Trial is set for July 20, 2020.

PARTY’S REQUESTS

Defendant Jeffrey C. Chong, M.D. (“Moving Defendant”) asks the Court to compel Plaintiff to serve verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) due to Plaintiff’s failure to serve timely responses.

Moving Defendant also asks the Court to impose $3,390 in monetary sanctions against Plaintiff and Plaintiff’s counsel of record for their abuse of the discovery process.

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. (See 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 of Civ. Proc. ; 2023.010.)

Sanctions are mandatory in connection with 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).)

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

DISCUSSION

On August 29, 2019, Moving Defendant served Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) on Plaintiff by U.S. mail.  (All Three Declarations of Ronan J. Duggan (“Duggan Decl.”), ¶ 3, Exh. A.)  Moving Defendant granted four extensions for Plaintiff to provide the outstanding responses, providing an ultimate deadline of 5 p.m. on December 16, 2019.  (Duggan Decl., ¶ 4-7, Exh. B-E.)  Plaintiff had not provided the outstanding responses as of the signing of Ronan J. Duggan’s declarations on January 6, 2020.  (Duggan Decl., ¶ 8.)

The Court finds the motions are properly granted.  Moving Defendant served the discovery on Plaintiff and Plaintiff failed to timely respond.

Moving Defendant’s request for $3,390 in sanctions for these nearly duplicative and straight-forward motions is unreasonable.  Rather, the Court finds $550 to be a reasonable amount of sanctions to be imposed against Plaintiff and her counsel, jointly and severally, for filing the unopposed moving papers.

CONCLUSION

The motions are GRANTED.

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

Plaintiff and her counsel of record are ordered to pay $550, jointly and severally, to Moving Defendant within 30 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.



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