Case Number: KC062033 Hearing Date: June 05, 2014 Dept: O

Goodwin v. Pagano, et al. (KC062033)

1. Defendant Arora’s MOTION FOR SUMMARY JUDGMENT

Respondent: Plaintiff Goodwin (pro per)

2. Defendant Truong’s MOTION FOR SUMMARY JUDGMENT

Respondent: Plaintiff Goodwin (pro per)

TENTATIVE RULING

1. Defendant Arora’s MOTION FOR SUMMARY JUDGMENT:

Dismissal without prejudice of Defendant Arora is set aside as being done for a tactical and improper purpose designed to prevent Defendant Aurora from receiving judgment on the merits. Defendant Arora’s motion for summary judgment is GRANTED.

This is a Motion for Summary Judgment filed by Defendant Arora on 1/31/2013. At the originally scheduled hearing on 4/21/2014 Plaintiff filed an opposition with his declaration alleging that Defendant Aurora failed to come timely to treat him (Plaintiff’s Declartion, Par. 2.) He also requested a continuance to obtain his expert’s declaration as the expert was still reviewing voluminous materials. The court continued the hearing to 6/5/2014 to allow the Plaintiff to acquire his supplemental declaration from his expert. (CCP 437c(h)). Further opposition was ordered to be filed 10 days prior to the hearing set for today and response 5 days prior. Instead of any further opposition, Plaintiff filed a “Dismissal without Prejudice” as to this Defendant on 5/23/2014. Although his anticipated supplemental opposition was due on 5/30/2014, the dismissal was not served on this Defendant until 6/2/2014.

Defendant contends the dismissal is untimely and was filed as a tactical ploy to avoid an unavoidable granting of this continued motion in his favor. Defendant’s position has merit. Here plaintiff failed to file any further opposition after the court continued the motion to allow such. He had already filed opposition in seeking the continuance. He cannot now avoid a ruling on the merits of the motion by filing a dismissal without prejudice and potentially deprive this moving defendant the res judicata or collateral estopple effect of the motion. Failure to file any supplemental opposition within the time ordered by the court goes to the merits of the original motion. “ Appellant failed to file opposition within the requisite time. At that point, entry of summary judgment in favor of respondents became a formality which appellant could not avoid by the stratagem of filing a last minute request for dismissal without prejudice.” Cravens v. State Bd. of Equalization, 52 Cal. App. 4th 253, 257, 60 Cal. Rptr. 2d 436, 438 (1997). “A plaintiff has the right to dismiss a defendant or an entire action without prejudice before the commencement of trial. (Code Civ. Proc., § 581, subds. (b), (c).) When a dismissal has properly been filed, the trial court loses jurisdiction to act in the case. The right to dismiss is not unlimited, however. In addition to certain statutory limitations on that right, others have evolved judicially. (Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1408–1409, 92 Cal.Rptr.2d 459 (Mossanen ).) One such judicial exception arises when the action has reached or approached a determinative adjudication by way of a summary judgment motion. In Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 57 Cal.Rptr.2d 4 (Mary Morgan ), the plaintiff filed an opposing brief as to only one of three pending summary judgment motions. At the hearing on the motions, the court issued a tentative ruling in favor of the defendants. The plaintiff asked for a continuance to obtain transcripts of recently conducted depositions that plaintiff contended would enable it to better oppose the motions. The continuance was granted, but instead of obtaining the transcripts and filing new or additional opposition papers, the plaintiff dismissed the action without prejudice. The defendants asked the court to reject the purported dismissal on the ground that the hearing had commenced and had been continued solely in order to allow the plaintiff to file further opposition. The trial court vacated the dismissal. The appellate court affirmed. By reading the dismissal statute in conjunction with the summary judgment statute, the appellate court concluded that it would be unfair to allow the dismissal to stand. Under that statute, the defendant was entitled to summary judgment in the absence of a showing of triable issues of fact by the plaintiff. The statute allowed a continuance for the limited purpose of conducting further discovery but did “not entitle the opposing party to defeat the motion by collateral **765 maneuvers.”’ (Id. at pp. 770–771, 57 Cal.Rptr.2d 4.)
Tire Distributors, Inc. v. Cobrae, 132 Cal. App. 4th 538, 543, 33 Cal. Rptr. 3d 761, 764-65 (2005)

The dismissal is set aside.

The duty owed by a medical provider is established by the standard of care followed by other medical providers in the same or similar community. “Expert evidence in a medical malpractice suit is conclusive as to the proof of the prevailing skill and learning in the locality and of the propriety of the particular conduct by the practitioner and in particular instances because such a standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1991) 121 Cal.App.3d 406, 412.) Where the moving party produces competent expert opinion declarations showing that there is no triable issue of fact on an essential element of the opposing party’s claim, the opposing party’s burden is to produce competent expert opinion declarations to the contrary. (Ochoa v. Pacific Gas & Elec. Co. (1998) 61 CA4th 1480, 1487.)

Defendant produces the expert opinion declaration of David Chapman, M.D. Chapman declares that Defendant complied with the standard of care, and to a reasonable degree of medical probability, no act or omission on the part of Defendant caused or contributed to Plaintiff’s injury. (Chapman Decl., Pars. 9 – 15) Defendant has met his burden.

Plaintiff’s burden is to produce competent expert opinion declarations to the contrary. Plaintiff has produced no expert opinion regarding Dr. Arora. Motion for Summary Judgment is GRANTED

2. Defendant Truong’s motion for summary judgment is GRANTED.

The duty owed by a medical provider is established by the standard of care followed by other medical providers in the same or similar community. “Expert evidence in a medical malpractice suit is conclusive as to the proof of the prevailing skill and learning in the locality and of the propriety of the particular conduct by the practitioner and in particular instances because such a standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1991) 121 Cal.App.3d 406, 412.) Where the moving party produces competent expert opinion declarations showing that there is no triable issue of fact on an essential element of the opposing party’s claim, the opposing party’s burden is to produce competent expert opinion declarations to the contrary. (Ochoa v. Pacific Gas & Elec. Co. (1998) 61 CA4th 1480, 1487.)

Defendant produces the expert opinion declaration of David Chapman, M.D. Chapman declares that Defendant complied with the standard of care, and to a reasonable degree of medical probability, no act or omission on the part of Defendant caused or contributed to Plaintiff’s injury. (Chapman Decl., Pars. 9 and 15.) Defendant has met his burden.

Plaintiff’s burden is to produce competent expert opinion declarations to the contrary. In opposition, Plaintiff submits the declaration of Graham Woolf, M.D. In reading the declaration it is apparent Woolf has no opinion regarding whether Defendant Truong complied with the standard of care, and whether to a reasonable degree of medical probability, Defendant Truong was the cause of Plaintiff’s injury. Woolf’s only assessment of Dr. Truong is that he “should have conducted a gastroenterology consult.” (Woolf Decl., Par. 25.)

What Truong could or should have done in hindsight, is not relevant to the court’s analysis. Almost any act of a physician is open to another physician’s view that something more could have been done or what was done could have been done in a different manner. But from a medical malpractice point of view, it does not matter, if in fact what the physician did was within the standard of care in the community. Criticism or disagreement is not enough. Plaintiff’s expert opinion in opposition must show that Truong failed to comply with the standard of care in the community, and also show to a reasonable degree of medical probability what is he did was a cause of Plaintiff’s injury. Plaintiff’s expert gives no opinion as to either a breach of the standard of care or causation. The motion is granted.