Case Number: BC720962 Hearing Date: February 14, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

HAZEL BERNARD,

Plaintiff(s),

vs.

ARTHUR CHOU, M.D.,

Defendant(s).

CASE NO: BC720962

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

Dept. 31

1:30 p.m.

February 14, 2020

1. Background Facts

Plaintiff, Hazel Bernard filed this action against Defendant, Arthur Chou, M.D. for medical malpractice. Plaintiff alleges Defendant was negligent in connection with the care and treatment relating to a May of 2017 surgery.

2. 1/06/20 Motion for Summary Judgment

On 1/06/20, the Court granted Defendant’s motion for summary judgment on the complaint. After setting for the general law governing the statute of limitations in medical malpractice cases, the Court ruled as follows:

The timeline concerning the filing of this lawsuit is not in dispute. Defendant performed the surgery that forms the basis of the lawsuit on 5/15/17. Plaintiff immediately began complaining of the surgical complications at issue here between 5/15/17 and 5/20/17. Plaintiff sent her notice of intent to sue to Defendant on 5/14/18 or 5/15/18. Plaintiff filed her complaint in this action on 9/28/18.

CCP §340.5 obligates a plaintiff to file an action for medical malpractice within one year after she knows, or should know, that she was injured. CCP §364 extends that time by 90 days from the date of service of the notice of intent to sue if the notice of intent to sue is served during the last 90 days of the one-year limitations period.

In this case, Plaintiff served her notice of intent to sue on either 5/14/18 (per Plaintiff) or 5/15/18 (per Defendant). 90 days after 5/15/18 fell on or about 8/18/18. Plaintiff therefore had until 8/18/19 to file her complaint in this action. She filed her complaint on 9/28/18, over a month too late.

Plaintiff argues the motion should be denied because (a) Defendant forged the date on the notice of intent to sue, (b) Defendant never told her the lawsuit was filed too late, (c) various judges have been assigned to the case and none has ever told her the lawsuit was filed too late.

With respect to Plaintiff’s first argument, it appears there is some confusion concerning whether the notice of intent to sue was served on 5/14/18 or 5/15/18. Defendant is not, however, contending the notice of intent to sue was untimely. This issue is irrelevant, as the complaint was not filed within 90 days after either 5/14/18 or 5/15/18.

With respect to Plaintiff’s second and third arguments, while the Court understands this is frustrating for a self-represented litigant, neither the defendant nor the Court has the obligation to notify a litigant if a lawsuit is not timely filed, unless and until the defendant brings a dispositive motion, such as this motion for summary judgment, and makes the necessary argument and showing concerning the statute of limitations. Indeed, it would be patently improper for a civil judge to notify a litigant of this problem, as civil judges merely rule on issues presented by parties, but do not raise issues such as the statute of limitations on their own.

Plaintiff also mentions the fact that Defense Counsel told her the complaint was factually deficient and she would need to file a First Amended Complaint, but there was no rush in doing so. Plaintiff filed her operative First Amended Complaint on 12/19/18. The FAC is not relevant to the analysis on the motion, as only the original complaint is relevant for purposes of calculating the statute of limitations.

The case is barred by the statute of limitations, and the motion for summary judgment is granted. The Court declines to rule on the issue of whether Defendant’s care and treatment complied with the standard of care, but does not that Defendant properly submitted an expert declaration in this regard, and Plaintiff failed to submit the necessary contrary expert declaration.

3. Motion for Reconsideration

At this time, Plaintiff moves for reconsideration of the Court’s 1/06/20 order. Plaintiff contends she was continuing to treat with Defendant until March of 2018, and she did not realize her hearing loss was more than temporary until that time. Plaintiff therefore contends the statute of limitations did not run until March of 2019, which was well after she filed her complaint on 9/28/18.

The motion for reconsideration is denied for two reasons. First and foremost, there are no new facts, circumstances, or law in the moving papers that could not, with reasonable diligence, have been presented in connection with the prior hearing. The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing. The party must make a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

All of the facts presented in the motion were known to Plaintiff at the time she filed her original opposition to the motion.

Second, even if the Court were to consider the facts submitted in connection with the motion for reconsideration, the ultimate outcome of the ruling on the summary judgment motion would not change. Plaintiff contends the motion must be denied because Defendant told her the hearing loss was only temporary, and she would regain hearing. Plaintiff alleges she continued to treat with Defendant until March of 2018, and it was only then that she realized her hearing loss was not temporary. Importantly, Plaintiff does not state what happened in March of 2018 that led her to conclude her hearing loss was not temporary.

A patient has a “diminished duty to discover” a physician’s tortious acts while still under that physician’s care. Unjian v. Berman (1989) 208 Cal.App.3d 881, 886-888. In Unjian, the court of appeals explained the mere fact that surgery did not produce the expected result was not enough by itself to indicate to the average person that the operation had been performed negligently. This was especially true where the patient continued under the doctor’s care, inquired about the cause of her apparent injury, and was given an explanation calculated to allay any suspicion of negligence on the doctor’s part. Id. at 885.

The problem with Plaintiff’s statements in her moving declaration is that she does not adequately explain her purported ongoing belief that her hearing loss was temporary. The surgery was in May of 2017. She states that she believed, at all times while she treated with Defendant, until March of 2018, Defendant’s statements that the hearing loss was temporary. However, in March of 2018, she “discovered” that the statements were false. Notably, while not in the moving declaration, Plaintiff’s points and authorities, page 6, lines 14-16 state that Defendant told Plaintiff here hearing loss “would probably come back in a few weeks.” At some point between May of 2017 and March of 2018, it should have been apparent that the hearing loss would not come back in “a few weeks.”

Additionally, as Defendant correctly notes in opposition to the motion, Defendant’s moving evidence in support of the summary judgment motion showed Plaintiff complained of nausea, loss of hearing, and balance issues immediately after the May 2017 surgery, and she had none of these issues prior to the surgery. Pursuant to Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295, this was sufficient to commence the running of the statute of limitations.

Thus, even if the Court considers the purported new facts in the motion, they are insufficient to raise a triable issue of material fact. There is no authority cited for the position that continuing to treat with the Defendant, standing alone, tolls the running of the statute of limitations. The motion for reconsideration is therefore denied.

Plaintiff is ordered to give notice.