Filed 2/10/20 Novshadyan v. Mihranian CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ROZIK NOVSHADYAN,

Plaintiff and Appellant,

v.

MARDIROS H. MIHRANIAN,

Defendant and Respondent.

B292154

(Los Angeles County

Super. Ct. No. BC642656)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank J. Johnson and Marc D. Gross, Judges. Affirmed.

RA & Associates, Romel Ambarchyan and Any Moskovian for Plaintiff and Appellant.

Law Offices of Richard M. Foster and Richard M. Foster for Defendant and Respondent.

Plaintiff Rozik Novshadyan appeals from a judgment entered in favor of defendant Mardiros H. Mihranian, M.D., in Novshadyan’s medical malpractice action after the trial court granted Dr. Mihranian’s motion for nonsuit. Novshadyan, who filed the action as a self-represented litigant, did not commence discovery for 15 months after filing her complaint and did not designate an expert witness. Seven weeks before trial, Novshadyan’s daughter, Any Moskovian, substituted in as counsel for Novshadyan and filed two successive ex parte applications for continuance of the trial and discovery deadlines, followed by a noticed motion and an oral motion on the day of trial. In each request, Novshadyan pointed to her difficulty in obtaining representation and her need for more discovery. The trial court denied all four requests and subsequently granted Dr. Mihranian’s motion for nonsuit based on Novshadyan’s lack of an expert witness on a physician’s standard of care.

On appeal, Novshadyan contends the trial court abused its discretion in denying a trial continuance despite her showing of good cause. Although we recognize the challenges for a self-represented litigant, on the facts here the court did not abuse its discretion in finding Novshadyan had not acted diligently in pursuing her case, nor did she show good cause for the continuance. We also conclude any error in denying Novshadyan’s request on the day of trial for relief from her failure timely to post jury fees was harmless. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint
B.
Novshadyan filed this action on December 2, 2016. Her complaint asserts causes of action for negligence and intentional tort against Dr. Mihranian, a general surgeon at Providence Saint Joseph Medical Center in Burbank, in connection with the September 2015 death of Novshadyan’s husband, Sarkis Moskovyan. The complaint alleges Dr. Mihranian failed to follow the proper standard of care in cleaning a recurring abscess he removed from Sarkis’s groin, and Dr. Mihranian’s improper treatment was a direct and proximate cause of Sarkis’s death several months later following surgery for gangrene of the stomach. At the time of filing, the case was assigned a trial date of June 4, 2018 and a final status conference date of May 18.

Dr. Mihranian answered the complaint with a general denial and affirmative defenses on February 3, 2017. On April 16, 2018 Moskovian and her law firm, RA & Associates (RA), substituted in as counsel for Novshadyan.

C. Pretrial Discovery and Ex Parte Applications
D.
Prior to filing the lawsuit, Novshadyan tried unsuccessfully to speak with Dr. Mihranian telephonically to obtain Sarkis’s medical records. After filing the lawsuit, Novshadyan did not make any further attempts to obtain the medical records or propound other discovery until March 6, 2018, when she served Dr. Mihranian with four sets of written discovery. Dr. Mihranian served responses on or about April 10 and produced Sarkis’s medical records. On March 21 and April 4, 2018 Dr. Mihranian propounded a total of eight sets of written discovery and noticed Novshadyan’s deposition. Dr. Mihranian also made a demand for exchange of expert witness information.

On April 9, 2018 Novshadyan sent a letter to Dr. Mihranian’s counsel proposing the parties stipulate to a 90-day continuance of the trial date and pretrial deadlines to accommodate a long-planned trip to Armenia between May 21 and June 5, 2018, and “to make sure we all have sufficient time to conduct thorough discovery.” Dr. Mihranian declined.

On April 26, 2018 Novshadyan, now represented by Moskovian, applied ex parte to continue the trial and all related deadlines, including the discovery deadlines. She did not specifically seek relief from the expert designation deadline. As good cause for a continuance, Novshadyan cited the recent substitution of counsel, Dr. Mihranian’s refusal to provide Sarkis’s medical records prior to the litigation, and Dr. Mihranian’s asserted “wrongful[] object[ions] to many of [Novshadyan’s] discovery questions.” Novshadyan submitted a declaration stating she “had been diligently trying to find legal representation in this matter” since filing the complaint. Novshadyan asserted she needed ex parte relief because the first available hearing date for a noticed motion was June 1, 2018, three days before trial. The trial court denied her application in a summary minute order.

On May 4, 2018 Novshadyan filed a second ex parte application to continue the trial and related dates, including discovery deadlines, in which she also moved to compel discovery. In support of her request for a continuance, Novshadyan cited Dr. Mihranian’s deficient discovery responses, the voluminous discovery he had propounded to her, harassing questioning by his counsel during her deposition, and Novshadyan’s long-planned trip to Armenia, which included Moskovian. In support of her request to compel further discovery responses, Novshadyan stated Dr. Mihranian “responded to only a handful of the requests, while making general objections for most other requests.” Novshadyan attached a meet-and-confer letter her attorney sent dated April 30, 2018 and a separate statement setting forth her discovery requests and her arguments for why the responses were insufficient, but she did not include Dr. Mihranian’s responses.

The trial court denied Novshadyan’s second application. The court held there was no authority for it to grant a motion to compel discovery on an ex parte basis, Novshadyan’s meet-and-confer effort was inadequate, and she was required first to utilize an informal discovery conference (IDC). The court concluded the “[l]ack of diligence in seeking the discovery militates against [a] trial continuance . . . .”

On May 7, 2018 Novshadyan filed a noticed motion to continue the trial and related deadlines. Novshadyan cited as good cause the grounds she had raised in support of her previous ex parte applications. In addition, Novshadyan argued Dr. Mihranian precluded her from subpoenaing for deposition seven witnesses involved in Sarkis’s treatment by failing to disclose their names prior to serving supplemental discovery responses on May 4, one business day before the discovery cutoff. In her reply memorandum Novshadyan added that Dr. Mihranian’s counsel had impeded Dr. Mihranian’s deposition on May 7, 2018 by making improper objections, instructing Dr. Mihranian not to answer, and terminating the deposition early.

After hearing argument on June 1, 2018, the trial court granted a two-day trial continuance from June 4 to June 6, 2018 to accommodate Novshadyan and Moskovian’s travel plans, but otherwise denied relief. The court found Novshadyan failed to make diligent efforts to conduct discovery by waiting to propound discovery for 15 months, leaving no time to move to compel further responses. The court also found Novshadyan failed to address the relevant factors supporting relief from the discovery cutoff set forth in Code of Civil Procedure section 2024.050. Further, Novshadyan failed to explain why she had waited until the eve of trial to substitute in counsel and did not show why the substitution was “required in the interests of justice,” as required by California Rules of Court, rule 3.1332(c)(4), governing trial continuances.

E. Final Status Conference and Trial
F.
On May 11, 2018 Dr. Mihranian filed three motions in limine, including a motion to preclude Novshadyan from presenting expert testimony at trial based on Novshadyan’s failure to designate an expert. In opposition, Novshadyan argued Dr. Mihranian’s failure to provide Sarkis’s medical records before the action was filed and his failure to identify the other individuals involved in Sarkis’s treatment until his May 4, 2018 supplemental discovery responses had prevented her from designating an expert witness. Novshadyan added she “still intends to designate an expert, but needs additional time for the experts to review the recently produced materials and render a report.” Novshadyan did not request relief from the expert designation deadline or submit evidence of any efforts to retain an expert.

On May 18, 2018 Dr. Mihranian filed his witness and exhibit lists. Novshadyan did not file her witness and exhibit lists in advance of the final status conference, prompting the court to continue the final status conference twice and to admonish Novshadyan’s attorney (Malalai Anbari standing in for Moskovian) that if Novshadyan failed to submit her trial documents, “the trial date will stand, and the case will be sent out with [Dr. Mihranian’s] binder.” The final status conference was ultimately set for June 6, the first day of trial.

On June 6, 2018 the case was assigned to Judge Frank J. Johnson for a three-day court trial. On June 7 the court heard Dr. Mihranian’s motion in limine to preclude Novshadyan from presenting expert testimony at trial. During argument, Moskovian conceded she did not have an expert and renewed her request for a trial continuance, citing the delay in receiving Sarkis’s medical file. Moskovian asserted she had been “actively engaged in discussions with doctors who are experts who are still reviewing these medical records” and “diligently consulting with different people in order to be able to formally designate an expert.”

The trial court granted Dr. Mihranian’s motion in limine and denied Novshadyan’s request for a continuance for the reasons enunciated in the prior rulings, including “the failure of the plaintiff while she was pro per to timely seek discovery and to prosecute this case and to hire experts.” The court found Novshadyan “basically [had] done no discovery.” The court added, “If I were to allow you to reopen and you did designate an expert, then [Dr. Mihranian] would have to designate experts.”

At this point Moskovian requested the court allow her belatedly to post jury fees, noting Novshadyan was willing and able to post the fees. Moskovian argued Novshadyan had not yet posted fees because she was awaiting the court’s order on her fee waiver request, which she believed the court had misplaced. The court denied the request as untimely.

After Moskovian presented her opening statement, Dr. Mihranian’s attorney moved for a nonsuit on the ground Novshadyan could not prove Dr. Mihranian’s treatment of Sarkis fell below the professional standard of care without expert testimony. The court granted the motion, explaining, “In [the] opening statement [Novshadyan] made numerous representations about the things the defendant doctor did or did not do and the quality of that care, all of which would have to be supported by competent expert testimony of other physicians. And as has been conceded, there are no such physicians available for the plaintiff to call.” On June 15, 2018 the court entered judgment in favor of Dr. Mihranian. Novshadyan timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Novshadyan’s Requests for a Trial Continuance
B.
Novshadyan contends the trial court abused its discretion in denying her four requests for a trial continuance, including the two ex parte applications, the noticed motion, and her oral request at trial. She argues the court’s denial of her requests deprived her of the ability to complete discovery, designate an expert, and prove her claims at trial. Although we recognize the challenges facing a self-represented litigant, the trial court did not abuse its discretion.

Requests for a trial continuance are governed by rule 3.1332 of the California Rules of Court (rule 3.1332). The party seeking a continuance “must make the request for a continuance by a noticed motion or an ex parte application . . . with supporting declarations.” (Rule 3.1332(b).) “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Rule 3.1332(c); see Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1127 (Thurman) [“Trial continuances are disfavored and may be granted only on an affirmative showing of good cause.”], disapproved on another ground in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196, fn. 8.)

Among the circumstances the court may consider as good cause for a trial continuance is a “party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” (Rule 3.1332(c)(6).) The court may also consider the “substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Rule 3.1332(c)(4).) “A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial” is also grounds for a continuance. (Rule 3.1332(c)(7).) Ultimately, however, “the court must consider all the facts and circumstances that are relevant to the determination,” including whether any previous continuances had been granted. (Rule 3.1332(d).)

“‘The decision to grant or deny a continuance is committed to the sound discretion of the trial court.’” (Thurman, supra, 203 Cal.App.4th at p. 1126; accord, Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 [“The trial court has discretion in ruling on requests to extend discovery deadlines or continue trial dates.”].) We review the denial of a trial continuance for an abuse of discretion. (Thurman, at p. 1126 [denial of trial continuance to allow plaintiff to seek class certification was not an abuse of discretion]; Hernandez, at p. 1246 [denial of trial continuance where plaintiff’s attorney had a terminal illness, then died, was an abuse of discretion]; see Padda v. Superior Court (2018) 25 Cal.App.5th 25, 27 [abuse of discretion to deny brief trial continuance when defendant’s designated medical expert unexpectedly suffered a severe medical condition rendering him unavailable for the trial].)

1. April 26 and May 4, 2018 ex parte applications
2.
Novshadyan contends the trial court abused its discretion in denying her ex parte applications because her attorney had just substituted into the case; Novshadyan had only recently obtained Sarkis’s medical records; Dr. Mihranian had acted in “bad faith” in refusing to respond to discovery; and Novshadyan needed time to obtain further discovery responses from Dr. Mihranian. The record does not support Novshadyan’s contentions.

With respect to Moskovian’s substitution as counsel on April 16, 2018, the substitution was made seven weeks before trial, which would have afforded sufficient time to prepare a case of this minimal complexity for trial had Novshadyan timely propounded discovery during the first 15 months of the case. Further, although Novshadyan declared she “had been diligently trying to find legal representation in this matter,” she provided no details on when she started looking for counsel, what efforts she undertook, or why she could not obtain legal representation prior to April 16. In her later-noticed motion Novshadyan only added generally, “I had been diligently trying to find legal representation in this matter, and spoke with countless attorneys and law firms who could not take on the case because of either their caseloads or conflicts of interests.”

Novshadyan also failed to demonstrate an “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts” warranting a trial continuance under rule 3.1332(c)(6). Novshadyan’s contention she did her best as a self-represented litigant with minimal English skills does not excuse her failure to prosecute her case diligently, including propounding form interrogatories and a written demand for at least Sarkis’s medical records. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984 [“mere self-representation is not a ground for exceptionally lenient treatment”].) Notably, the 2016 complaint and April 9, 2018 meet and confer letter were clearly written in fluent English. Presumably Novshadyan had access to competent legal or other assistance prior to the April 16, 2018 substitution of counsel. Novshadyan does not explain why she was able to serve four sets of written discovery as a self-represented litigant in March 2018, but she was unable to serve the same discovery a year earlier.

Had Novshadyan shown Dr. Mihranian was stonewalling Novshadyan’s efforts to obtain discovery, that may well have supported a trial continuance. But she did not. Novshadyan concedes Dr. Mihranian timely produced Sarkis’s medical records in response to her first discovery demand. Novshadyan asserted in her second ex parte application that Dr. Mihranian “responded to only a handful of the requests, while making general objections for most other requests.” But she relied solely on her meet-and-confer letter and separate statement, which do not attach or restate Dr. Mihranian’s discovery responses. Thus, she failed to establish that Dr. Mihranian was improperly withholding information or running down the clock, or indeed, that he took any unreasonable positions. Moreover, Novshadyan could have prepared a motion to compel Dr. Mihranian to supplement his April 10 responses prior to the discovery motion deadline of April 27, but she waited until the deadline had passed to file her first ex parte application.

Novshadyan’s reliance on Hamilton v. Orange County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 766 is misplaced. In Hamilton, in response to the defendant’s motion for summary judgment, the plaintiff noticed the depositions of critical witnesses one and a half months before the deadline for filing an opposition. (Id. at p. 765.) After plaintiff’s counsel continued the depositions to accommodate defense counsel’s trial schedule, defense counsel stipulated to continue the summary judgment and trial to allow time for the depositions to be taken. (Ibid.) The trial court rejected the stipulation and denied the continuance, then granted the defendant’s unopposed motion for summary judgment. (Id. at p. 764.) The Court of Appeal reversed, concluding plaintiff’s counsel was not “optimally diligent” in timely scheduling the depositions, but “this relatively minor lack of diligence did not justify the substantial injustice the court’s order created.” (Id. at p. 766.) By contrast, Novshadyan failed to pursue discovery for 15 months, waiting until two months before the discovery cutoff deadline to propound her first set of discovery. Although the April 26 ex parte application was Novshadyan’s first request for a continuance, on this record the trial court did not abuse its discretion in concluding the “[l]ack of diligence in seeking the discovery militates against [a] trial continuance . . . .”

3. May 7 noticed motion to continue trial
4.
Novshadyan contends as to her noticed motion for a trial continuance, in addition to the arguments she makes as to her ex parte applications, Dr. Mihranian waited until one business day before the May 7 discovery cutoff (May 4) to serve supplemental discovery responses identifying seven individuals involved in Sarkis’s care under the direction of Dr. Mihranian, thereby denying Novshadyan an opportunity to subpoena the key witnesses. We agree with Novshadyan that opposing counsel’s discovery gamesmanship calculated to conceal the identity of key witnesses would support a claim of an “excused inability to obtain essential testimony . . . despite diligent efforts” under rule 3.1332(c)(6). But Novshadyan has not made an affirmative showing that is what happened here.

First, by waiting until two months before the discovery cutoff to initiate discovery, Novshadyan created a risk there would be no time to compel supplemental responses after the discovery cutoff date. Second, Dr. Mihranian supplemented his responses within three days of receiving Novshadyan’s meet-and-confer demand—before the discovery cutoff date—which is not unreasonable on its face. Third, because the record does not contain Novshadyan’s complete requests or any of Dr. Mihranian’s responses, nor any information concerning the seven individuals identified, we have no way of knowing whether their identities were clearly responsive to Novshadyan’s initial requests (although the identity of witnesses to Sarkis’s surgery would have been responsive to the form interrogatories). Fourth, Novshadyan has not shown why she could not reasonably have determined the identity of the witnesses from the medical records Dr. Mihranian produced on April 10. Fifth, Novshadyan could have served deposition subpoenas, then sought a stipulation or limited relief from the discovery cutoff date. Novshadyan also could have subpoenaed the witnesses for trial if they were not among the witnesses on Dr. Mirhanian’s witness list. Finally, as the trial court observed, Novshadyan in her motion failed to address the factors supporting relief from the discovery cutoff under section 2024.050, including identification of the witnesses and the relevance of their testimony. (See § 2024.050, subd. (b).) Under these circumstances, the court did not abuse its discretion in denying Novshadyan’s motion.

5. June 7 oral request for a continuance
6.
Novshadyan did not present any additional evidence or circumstances to support her oral request for a continuance on the morning of trial. Although Dr. Mihranian’s motion in limine to preclude Novshadyan from presenting a medical expert prompted her renewed request for a continuance, Novshadyan’s failure to designate an expert was not a new development or a “significant, unanticipated change in the status of the case” supporting a continuance under rule 3.1332(c)(6).

To the contrary, the deadline for expert witness designation and exchanges passed on April 16, 2018, before Novshadyan filed her first ex parte application for a continuance, but she failed to make a showing for relief from the expert designation in any of her first three requests for a continuance. Novshadyan still failed to request relief from the expert designation deadline after receiving Dr. Mihranian’s motion in limine filed on May 11 seeking to exclude any expert testimony for failure to designate an expert. Novshadyan did not provide any support for her request for relief on the day of trial, merely stating she was “actively engaged in discussions with doctors who are experts who are still reviewing these medical records” (which she had received almost two months earlier).

Further, Novshadyan never made a showing, even belatedly, of “exceptional circumstances” supporting the late designation of an expert after the discovery cutoff date, nor did she meet the requirements under section 2034.720, subdivision (c), that she show “excusable neglect” and seek leave to designate the expert “promptly after learning of the . . . excusable neglect.” (§ 2034.710, subd. (b).) On this record, the trial court did not abuse its discretion in denying her final request for a continuance.

C. The Trial Court’s Denial of Relief from Novshadyan’s Jury Trial Waiver Was Not Prejudicial Error
D.
Novshadyan contends the trial court abused its discretion by not allowing her on the day of trial to post jury fees despite her claim the court misplaced her fee waiver. Even if the trial court had abused its discretion, any error was harmless.

A party in a civil case waives the right to a jury trial by failing to deposit jury fees “no later than 365 calendar days after the filing of the initial complaint” where, as here, there was no case management conference. (§ 631, subds. (c)(2), (f)(5).) However, “[t]he court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.” (Id., subd. (g).) “The trial court should grant a motion for relief of a jury waiver ‘unless, and except, where granting such a motion would work serious hardship to the objecting party.’ [Citations.] When there is doubt about whether to grant relief from a jury trial waiver, the court must resolve that doubt in favor of the party seeking a jury trial.” (Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 10; see Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 958 [“[B]ecause our state Constitution identifies the right to jury trial as ‘inviolate’ [citation], any ambiguity or doubt concerning the waiver provisions of section 631 must be ‘resolved in favor of according to a litigant a jury trial.’”].) Denying relief from a jury waiver in the absence of prejudice to the opposing party is an abuse of discretion. (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 639.)

It undisputed Novshadyan did not deposit jury fees by the December 2, 2017 deadline (one year after the lawsuit was filed). Novshadyan’s attorney stated on the day of trial Novshadyan was willing and able to post jury fees but had been waiting for the court to act upon her application for a fee waiver she had previously submitted. The trial court rejected Novshadyan’s request to post late jury fees, explaining, “The question of an [a]pplication for [w]aiver of [a]dditional [f]ees that was denied or declined by the prior Court is also a non-issue as the posting deadline is long past. Any relief from the statutory cut-off for posting jury fees should have been the subject of a formal motion.”

Novshadyan did not file an ex parte application or noticed motion for relief from the jury trial waiver, nor did she present evidence to substantiate her assertion she had previously filed an application for a jury fee waiver. But even if the trial court abused its discretion in denying her relief from the jury trial waiver, any error was harmless because the trial court would have properly granted Dr. Mirhanian’s motion for nonsuit given Novshadyan’s lack of an expert even had she proceeded in a jury trial. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801 [the harmless error standard under People v. Watson (1956) 46 Cal.2d 818 applies to civil cases, “precluding reversal unless the error resulted in a miscarriage of justice”].)

DISPOSITION

The judgment is affirmed. Dr. Mihranian shall recover his costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.