TYLER WESTBROOK VS CHRISTINE KOHLER EKSTRAND, M.D.

Tentative Rulings

Case Number: ****2785    Hearing Date: October 30, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

   Plaintiff, Tyler Westbrook filed this action against Defendant, Christine Kohler Ekstrand, M.D. for damages arising out of medical malpractice.

2. 10/25/19 Hearing on Motion for Summary Judgment

   Defendant moved for summary judgment, contending she complied with the standard of care at all times, and nothing she did caused or contributed to Plaintiff’s claimed damages. The Court noted that the hearing on the motion was originally scheduled for 7/26/19, and that the hearing was continued because Plaintiff appeared at the hearing and asked for additional time to oppose the motion.

   Plaintiff filed an untimely opposition to the motion on 10/21/19. The Court found the untimely opposition to be deficient, in that the declarations in support of the opposition were missing and/or unsigned. The Court considered the untimely opposition, but found it failed to raise a triable issue of material fact. The Court therefore granted the motion.

   On 1/03/20, the Court entered Judgment in Defendant’s favor. On 2/19/20, Defendant filed proof of service of Notice of Entry of Judgment.

3. Motion to Vacate Judgment

   Plaintiff moves to vacate the judgment entered against him, contending it was entered because of his attorney’s mistake, inadvertence, and/or neglect. Plaintiff moves pursuant to CCP ; 473(b). Pursuant to Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618, a ; 473(b) motion can only be used to vacate a dismissal that is the “procedural equivalent of a default.” Pursuant to Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483-484, ; 473(b) was never intended to be a catch-all remedy for every case of poor judgment on the part of counsel that results in dismissal of an action. Pursuant to English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 137-138, a ; 473(b) motion cannot be used to vacate a dismissal entered after a defendant successfully moves for and obtains a summary judgment ruling.

   The Court notes that Plaintiff’s attorney’s multiple egregious mistakes prior to summary judgment resulted in the entry of judgment in favor of Defendant. First, Plaintiff failed to raise all grounds for opposition prior to the original 7/26/19 hearing date. Second, Plaintiff filed an untimely opposition in connection with the continued 10/25/19 hearing date. Finally, the untimely opposition contained numerous defects rendering the evidence submitted therewith subject to objection. This is not a case where the judgment was entered because of procedural issues like a default. This is a case where Counsel erred repeatedly, and the errors resulted in a substantive judgment on the merits of the case. Allowing relief in a case like this would require allowing relief in all cases involving malpractice.

   Furthermore, although Plaintiff only moves for relief pursuant to the mandatory provisions of CCP ; 473(b), as Defendant asserts in opposition, Plaintiff does not establish relief under the discretionary provisions of ; 473(b). “Mere neglect or negligence is not a sufficient ground for relief under section 473. On the contrary, the neglect or mistake on the part of counsel must be excusable. [Citation.]” (Cochran v. Linn (1984) 159 Cal.App.3d 245, 252 [“In its minute order denying the motion to vacate Linn's summary judgment, the trial court pointed out that plaintiffs' counsel was relying on the fact that they were negligent in preparing their case, and that no good cause had been shown which would permit relief under Code of Civil Procedure section 473.”].) Plaintiff has not demonstrated that his counsel’s neglect in this action was excusable.

   The motion to vacate the judgment is therefore denied.

   Plaintiff is ordered to give notice.

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

   Dated this 30^th day of October, 2020

Case Number: ****2785    Hearing Date: October 25, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, Tyler Westbrook filed this action against Defendant, Christine Kohler Ekstrand, M.D. for damages arising out of medical malpractice. 

2. Motion for Summary Judgment

a. Moving Argument

At this time, Defendant moves for summary judgment, contending she complied with the standard of care at all times, and nothing she did caused or contributed to Plaintiff’s claimed damages. 

b. Prior Hearing

The Court was originally scheduled to hear this motion on 7/26/19.  At the conclusion of the hearing, the Court determined Defendant met her moving burden to show she was entitled to judgment as a matter of law.  The Court continued the hearing on the motion to permit Plaintiff to present evidence in support of his theory, posited for the first time at the hearing on 7/26/19, that he was mentally incompetent to understand the informed consent documents he signed. 

c. Analysis

Any supplemental opposition to the motion was due on or before 10/11/19.  The Court did not receive a timely supplemental opposition to the motion.  Indeed, on 10/18/19, Defendant filed a supplemental reply wherein she correctly notes that Plaintiff has not filed supplemental opposition to the motion. 

Prior to 10/21/19, the Court prepared a tentative ruling granting the motion for summary judgment due to the lack of supplemental opposition.  On 10/21/19, Plaintiff submitted an untimely supplemental opposition to the motion.  To the extent the Court has considered the supplemental opposition, the Court finds it does not raise triable issues of material fact.  Plaintiff purports to provide the “Declaration of Sar Ahmed, M.D. and Karl Epstein, M.D.” with the opposition (see proof of service of opposition papers, dated 10/18/19).  There is no declaration of Ahmed or Epstein with the opposition.  There is a letter from Ahmed to Plaintiff’s attorney, but it is not signed under penalty of perjury.  There is nothing from Epstein with the opposition papers.  Defendant’s objections, filed on 10/22/19, are sustained.

The opposition also argues that, to the extent the Court is inclined to grant the motion, the Court should continue the hearing on the motion.  Continuances of summary judgment motions are governed by CCP ;437c(h).  A threshold requirement for a continuance is a declaration from an attorney setting forth grounds for the requested continuance.  There is no declaration of Plaintiff’s attorney in support of the request for a continuance, and it is denied.

As a final note, Plaintiff submitted a new separate statement with the opposition.  In the Court’s original tentative ruling concerning this matter, dated 7/26/19, the Court indicated, “Plaintiff’s separate statement in opposition to the motion fails to comply with CRC 3.1350(h).  Plaintiff failed to state the facts in her separate statement, which rendered review of the statement virtually impossible.”  Despite this prior admonishment, Plaintiff provided a substantially identical separate statement with the supplemental papers.  The separate statement remains impossible to review and does not provide the Court with meaningful guidance. 

The Court previously found Defendant met her moving burden to show she is entitled to judgment as a matter of law.  The Court permitted Plaintiff to submit additional papers to raise a triable issue of material fact.  Plaintiff failed to file any timely papers.  Plaintiff’s untimely papers fail to include any admissible evidence, either to raise a triable issue of material fact or to support a request for a continuance.  Additionally, Plaintiff’s separate statement remains fatally defective.  The motion for summary judgment is therefore granted at this time.  Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.