Case Name: Jane & John Doe v. Dr. Roy Hong, M.D., et al.
Case No.: 2014-1-CV-261702

This is a matter primarily arising from alleged medical malpractice by several Defendants. Currently before the Court is the motion for summary judgment/adjudication by Plaintiffs Jane and John Doe (“Plaintiffs”) on the claims made in their original and still operative Complaint filed March 5, 2014: (1) medical malpractice (against Defendants Dr. Hong, Dr. Dirbas, Palo Alto Foundation Medical Group [“PAFMG”] and Stanford Hospital and Clinics [“Stanford”]; (2) medical battery (against Hong and Does only) (3) invasion of privacy; intrusion into private matter (against Hong and Does only); (4) invasion of privacy; wrongful disclosure of private information (against Hong and Does only); (5) violation of the Confidentiality of Medical Information Act (against Hong and Does only); and (6) loss of consortium (against all Defendants, but derivative of the medical malpractice claim). The motion is opposed by Defendants Frederick Dirbas, M.D. and Stanford Hospital & Clinics (collectively “Defendants” for purposes of this motion).

Plaintiffs are representing themselves. A party proceeding in propria persona “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Under California law, “‘the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’ ” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126. See also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”])

Request for Judicial Notice
Plaintiffs’ Notice of Motion states among other things that the motion is based on “a Request for Judicial Notice of Plaintiffs’ March 15, 2017 Mandatory Settlement Conference statement and exhibits.” (Notice of Motion at 3:12-13.) No separate request for judicial notice was filed by Plaintiffs and no copy of that statement is provided with the motion.

California Rule of Court 3.1113(l) states: “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” Rule of Court 3.1306(c) in turn states in pertinent part that “A party seeking judicial notice of material . . . must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Either make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court.”

As Plaintiffs have not complied with Rules of Court 3.1113(l) or 3.1306(c) the reference to judicial notice in their notice of motion, to the extent it can be construed as a request for judicial notice, is DENIED.

Motion for Summary Judgment/Adjudication
The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal App 4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal App 4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. See also McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720.)

Where a plaintiff (or cross-complainant) seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (CCP §437c(p)(1); See Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra at 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact].)

“[I]n any medical malpractice action, the plaintiff must establish: (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.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 [citations and internal quotations omitted].) In order to prove the element of breach of the duty of care, a plaintiff must prove that the defendant’s conduct fell below the standard of care that a person of ordinary prudence would exercise under similar circumstances. (Flowers v. Torrance Memorial Hosp. Medical Ctr. (1994) 8 Cal.4th 992, 997; see also Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215 [“The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances.”]) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606, emphasis added.) “As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff’s damages.” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542, internal citations omitted.)

To recover damages in a medical malpractice action, the plaintiff must also establish “a proximate causal connection between the negligent conduct and the resulting injury.” Dumas v. Cooney (1991) 235 Cal App 3d 1593, 1603. Like breach of duty, the element of causation in a medical malpractice case can only be determined by expert medical testimony. (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal App 3d 379, 385.)

Plaintiffs’ motion is DENIED, in its entirety, as follows.

Plaintiffs’ motion is untimely, and this by itself is sufficient basis to deny the motion. Pursuant to Code of Civil Procedure (“CCP”) §437c(a)(2), notice of a motion for summary judgment and/or adjudication and all supporting papers must be served on all parties “at least 75 days” before the hearing date. The Court has no power to shorten the 75 day notice requirement without the parties’ consent nor may it cure the defect by continuing the hearing. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) Pursuant to CCP §437c(a)(3) a summary judgment motion also “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” The application for an order showing good cause for a hearing scheduled within 30 days of trial must be made before the motion is filed. “Unless and until the trial court found good cause, the notice of the hearing was invalid.” (Robinson, supra, at 1268.)

Defendants, citing CCP §12c, argue that Plaintiffs’ motion is untimely under CCP §437c(a)(2) because it was filed (and apparently served via personal service—no proof of service for the motion has been submitted by Plaintiffs) on September 5, 2017, less than 75 days before the hearing date. Defendants are correct that counting back 75 days from the hearing date without counting the hearing date itself, the method for calculation set forth in CCP §12c, brings one to September 2, 2017. The filing and apparent personal service of the motion on September 5, 2017 was therefore untimely, and this is a jurisdictional defect under the law.

Even if Plaintiffs’ motion had been served with “at least 75 days” notice on September 1, 2017 it would still be (and is) untimely under CCP §437c(a)(3) because the hearing date was set within 30 days of the November 27, 2017 trial date without prior permission from the Court. The November 27, 2017 trial date was set on July 11, 2017, long before the motion was filed, so there is no excuse for Plaintiffs’ failure to seek an order permitting the motion to be heard within 30 days of the trial date for good cause shown before filing the motion. Since the motion was noticed for less than 30 days before the trial date without prior permission from the Court, the notice of hearing is invalid under Robinson, supra. The Court notes that Plaintiffs suggest in their moving papers that the motion is timely because they claim to have reserved a date for a summary judgment motion before the trial date was set on July 11, 2017. This is irrelevant as, regardless of any reservation of dates by any party, any motion for summary judgment or adjudication not already filed and served on July 11, 2017 when the Court set the November 27, 2017 trial date thereafter had to comply with CCP §437c(a)(3).

Even if Plaintiffs’ motion could be considered timely (and it cannot be) it would still be denied in its entirety for failure to meet the initial burden. Plaintiffs’ motion does not properly request summary adjudication of any cause of action or issue in the alternative. Rule of Court 3.1350(b) states in pertinent part that “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

Plaintiffs’ Notice of Motion identifies several issues and/or claims as purported subjects for summary adjudication, but these are not included in Plaintiffs’ Separate Statement, much less repeated verbatim. Plaintiffs’ Separate Statement, which appears to be incomplete, ends abruptly on page 14 after undisputed fact no. 61 and lists only one “issue”: “I. Cause of Action: Medical Malpractice, Issue 1—Defendants Dirbas and Stanford Fail to Show a Prima Facie Defense of the First Cause of Action for Negligence. Defendants did not meet the standard of care in 2012 and did negligently cause Plaintiff Jane Doe’s injuries.” (Plaintiffs’ Separate Statement at 2:25-28.).

Plaintiffs have also failed to submit any supporting evidence, and in particular they have failed to submit any declaration from a medical expert that would allow them to meet their initial burden on medical malpractice by establishing the applicable duty of care, a breach by Defendants, or that any breach of a duty owed by Defendants was the cause of Plaintiffs’ claimed damages. Plaintiffs’ Separate Statement does refer to documents, and occasionally cites to them as exhibits, but none of the cited documents were submitted with the motion. Page 18 of Plaintiffs’ motion is titled a “Declaration in Support” by Plaintiff Jane Doe wherein she purports to authenticate “Exhibit A” as “a true and correct copy of the operative complaint,” “Exhibit B” as “a true and correct copy of the operative complaint,” and “Exhibits C, D & E” as “true and correct copies of all or relevant portions of the Defendants’ depositions, and Stanford employee Dr. Ganjoo.” None of these documents are attached to the “declaration,” or otherwise submitted with Plaintiffs’ September 5, 2017 moving papers. The declaration by Plaintiff “Jane Doe” does not itself provide any support for Plaintiffs’ motion as, apart from authenticating missing exhibits it simply makes complaints about Defendants’ purported behavior during discovery.