Case Number: BC631342 Hearing Date: May 31, 2018 Dept: 3

SHLOMO ROV,

Plaintiff(s),

vs.

EDWARD KAZUHISA NOMOTO, M.D., ET AL.,

Defendant(s).

CASE NO: BC631342

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING APPLICATION TO FILE DOCUMENTS UNDER SEAL

Dept. 3

1:30 p.m.

May 31, 2018

1. Background Facts

On 8/22/16, Plaintiff, Shlomo Rov filed this action against Defendants, Edward Kazuhisa Nomoto, M.D. and Cedars-Sinai Medical Center for medical malpractice. The complaint alleges that on 5/8/15 Plaintiff was admitted to Cedars and underwent a back surgery in which a drainage tube was inserted in his lower back and under his right arm. Par. 29. Plaintiff alleges he awoke to severe pain in the surgical area and in his right shoulder. Par. 30. On 5/12/15, a doctor tried to remove the drain tube and could not. The doctor told Plaintiff it was stuck and Plaintiff was rushed to surgery to have it removed, which took two hours. Par. 31. Plaintiff’s pain increased after this second surgery and he could not stand and needed a walker to move. Par. 32.

In interrogatory responses Plaintiff contended Defendant Cedars was negligent in two regards: first, Plaintiff alleges Defendant was negligent in supplying a defective drain in his back which broke; second, Plaintiff alleges Defendant was negligent in causing him to sustain a right shoulder injury during his hospitalization. UF no. 2.

2. Matters on Calendar

On 3/02/18, Cedars filed a motion for summary judgment and/or adjudication and motion to file documents under seal, setting both for hearing on 5/31/18. On 5/18/18, one day late, Plaintiff filed opposition to the motion for summary judgment. Compounding the problem, Plaintiff did not file proof of service of the opposition on Defendants. On 5/25/18, Defendant filed timely reply papers; the reply does not object to consideration of the late-filed opposition. The Court has read and considered the opposition papers despite the defective filing and service, but orders Plaintiff’s attorney to ensure timely and proper filing and service in the future in connection with this and other actions.

3. Motion for Summary Judgment

Defendant Cedars moves for summary judgment or adjudication on on two grounds. First, it contends the complaint is barred by the statute of limitations. Second, it contends its care and treatment of Plaintiff complied with the standard of care at all times and no act or omission caused or contributed to Plaintiff’s claimed damages.

a. Shoulder

In order to establish that defendant’s negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

Plaintiff’s opposition discusses damages to Plaintiff’s shoulder and argues there are triable issues of material fact concerning Plaintiff’s shoulder. Plaintiff’s expert’s declaration, however, expressly states, at ¶7, “With regard to Mr. Rov’s frozen shoulder, it resolved and is no longer an issue.” Defendant provided an expert declaration to establish that nothing Cedars did caused or contributed to Plaintiff’s shoulder problems. Dec of Spoonamore, ¶7. Absent a contrary expert declaration from Plaintiff, the Court finds Defendant met its moving burden concerning the shoulder and Plaintiff failed to raise triable issues of material fact. The Court is not considering anything relating to Plaintiff’s shoulder in the remainder of the ruling on this motion.

b. Statute of Limitations (Drain)

The statute of limitations governing medical malpractice claims is found at CCP §340.5. A plaintiff wishing to assert a claim for such damages must do so within three years of the date of injury or one year after discovery of the injury, whichever occurs first. At issue here is the date of discovery of the injury and the running of the one-year statute. Discovery of the injury is defined to include the time when the plaintiff should, through reasonable diligence, have discovered the injury.

A plaintiff must conduct a reasonable investigation after becoming aware of an injury and is charged with knowledge of information that would have been revealed by such an investigation. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808. A plaintiff has reason to know a potential claim exists when he or she has reason to suspect a factual basis for its elements: “Suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” Fox v. Ethicon Endo-Surgery, Inc., supra, 35 C4th at 807. “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” Jolly v. Eli Lilly & Co. (1988) 44 C3d 1103, 1111. To rely upon the delayed discovery rule, a potential plaintiff who suspects his or her injury was caused by wrongdoing “must conduct a reasonable investigation of all potential causes of that injury.” Fox, supra, at 808.

Defendant’s UF nos. 3 and 4 in its separate statement establish that Plaintiff knew the drain broke and of the damages caused thereby and knew of the damage to his shoulder on or before the date he was discharged from Cedars, 5/13/15. Plaintiff filed a Notice of Intent to sue under CCP §364 on 2/09/16, which Notice tolled the statute by 90 days. Fact 6. Plaintiff failed, however, to file his complaint until 8/22/15, more than 90 days thereafter. UF no. 8.

As noted above, the Court is only considering arguments concerning the drainage tube in connection with this ruling. Thus, fact 3 is the fact at issue concerning statute of limitations. In response to fact 3, Plaintiff concedes he knew the drain broke before he was discharged. He argues, however, that he did not know Defendant’s negligence caused his injuries. Notably, Plaintiff provides no briefing on this issue in his opposition to the summary judgment motion.

Once a plaintiff has “notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation,” a plaintiff is charged with presumptive knowledge sufficient to trigger the statute. Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-97. Notably, even at the pleading stage, in assessing allegations of delayed discovery, the court places the burden on the plaintiff to allege facts showing diligence; conclusory allegations will not withstand demurrer. Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638. Here, the complaint does not even attempt to plead delayed discovery.

Plaintiff’s opposition is also gsilent concerning his efforts to determine whether or not Defendant was negligent. Notably, the only evidence Plaintiff cites to support his contention that fact 3 is undisputed is the Declaration of Epstein, ¶10, which states, “Although I agree with Dr. Spoonamore’s declaration stating that this particular drain has an inherent risk of breaking because it widens and can become tethered to the junction which can cause it to break, I disagree that Dr. Rajaee was not negligent in attempting to remove the drain.” Nothing in this statement concerns the issue of when Plaintiff discovered, or should have discovered, Defendant’s alleged negligence.

Defendant met its initial burden to show the statute of limitations bars Plaintiff’s claims arising out of the broken drain. Plaintiff failed to raise a triable issue of material fact in this regard.

c. Standard of Care/Causation

The Court declines to rule on Defendant’s motion for summary judgment concerning the drain on the ground that it complied with the standard of care and did not cause or contribute to Decedent’s death, as doing so is not necessary to a resolution of the merits of the motion.

d. Lack of Informed Consent

Plaintiff’s opposition argues Plaintiff did not supply informed consent with respect to the drain. This argument fails for two reasons. First, Plaintiff did not allege lack of informed consent in his complaint, and did not offer up this theory in response to discovery. The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.

e. Products Liability

Plaintiff’s opposition also raises issues concerning potential products liability claims against third parties. Those claims are not at issue on Cedars’s motion for summary judgment. Plaintiff is free to pursue any claims against third parties he wishes to pursue, but Plaintiff failed to show how any such claims would affect his case against Cedars.

f. Continuance

The Court notes that Plaintiff, in opposition to the motion, seeks a continuance pursuant to CCP §437c(h). Plaintiff fails, however, to address how a continuance would give rise to discovery of facts to show the statute of limitations does not apply. Indeed, Plaintiff’s attorney’s declaration in support of the request for a continuance is silent in this regard. The request for a continuance is therefore also denied.

4. Motion to File Records Under Seal

Defendant filed an application to file records under seal as a companion to the motion for summary judgment.

When seeking to have records filed under seal, a written motion or application is required, accompanied by points and authorities and by declarations stating facts supporting the findings required for a sealing order. CRC 2.551(b); see H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894. Defendant failed to file any points and authorities in support of the application.

Additionally, Defendant failed to comply with the proper procedures for having records filed under seal. Defendant was supposed to lodge the documents with the clerk in a separate envelope sealed and labeled “CONDITIONALLY UNDER SEAL.” CRC 2.551(b), (d), (e). Defendant failed to do so. Pursuant to Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 601, if a party files documents with the Court prior to obtaining an order sealing the documents, the right to move for such an order is waived.

For all of the foregoing reasons, the application to file documents under seal is denied.

Defendant is ordered to give notice.