Case Name: Stephanie Drewsen and Ron Drewsen v. Stanford Hospital & Clinics

Case No.: 2014-1-CV-268292

Motions for Relief and Reconsideration of Motion for Summary Adjudication by Plaintiffs Stephanie Drewsen and Ron Drewsen

Factual and Procedural Background

This is an action for medical negligence and battery. Defendant Stanford Hospital & Clinics (“SHC”) is a health care provider rendering licensed medical services in Santa Clara County. (See Corrected Second Amended Complaint [“SAC”] at ¶ 2. ) Plaintiff Stephanie Drewsen (“Plaintiff”) became a patient of defendant SHC in January 2013. (Id. at ¶ 7.) Dr. David W. Lowenberg (“Dr. Lowenberg”) was Plaintiff’s physician and an employee of defendant SHC. (Id. at ¶ 2.) Eric Sundberg, M.D. and Varun Gajendran, M.D. (collectively, “the residents”) were employed by defendant SHC as assistant resident surgeons. (Ibid.)

On April 29, 2013, Plaintiff was scheduled to receive a posterior iliac crest harvesting surgery. (SAC at ¶ 8.) The purpose of the surgery was to harvest iliac, cancellous bone and place it in the Plaintiff’s tibia, which had earlier suffered the effects of osteomyelitis. (Ibid.) Dr. Lowenberg, at a pre-op conference with both Plaintiff and her husband, Ron Drewsen (collectively, “Plaintiffs”), previously stated he would perform Plaintiff’s surgery. (Id. at ¶ 6.) Dr. Lowenberg claimed he had performed hundreds of these surgeries and thus Plaintiff should expect everything to go well. (Ibid.)

Just prior to the operation, without informing Plaintiff that he would not perform the surgery, Dr. Lowenberg left the operating room. (SAC at ¶ 10.) In doing so, the residents were left in the room to perform the surgery without supervision. (Ibid.) The residents had little or no experience in performing the surgery and received little or no instruction from Dr. Lowenberg. (Id. at ¶ 11.) In addition, Plaintiff did not assent to having untrained residents perform her surgery and was never told that residents would be assisting her surgery prior to the operation. (Id. at ¶ 13.) During surgery, the residents operated on the wrong bone which led Plaintiff to suffer permanent damage to the S1 nerve. (Id. at ¶ 12.) As a consequence, Plaintiff suffered personal injuries and emotional distress.

The operative SAC sets forth causes of action for: (1) health care provider negligence; (2) loss of consortium; (3) strict liability; (4) battery from a lack of informed consent; and (5) fraud.

On February 11, 2019, defendant SHC filed a motion for summary adjudication to the fourth and fifth causes of action. The motion was set for hearing on May 2, 2019. Following oral argument, the Court took the matter under submission and issued a written decision granting the motion. The Court entered judgment with respect to these claims on May 16, 2019.

Currently before the Court are Plaintiffs’ motions for relief under Code of Civil Procedure section 473, subdivision (b) and for reconsideration under section 1008. Defendant SHC filed written opposition. Trial is set for January 27, 2020.

Motion for Relief under Section 473, Subdivision (b)

Plaintiffs seek relief from the Court’s Order for summary adjudication in part on the basis of section 437, subdivision (b). That section has a mandatory provision and discretionary provision. Plaintiffs do not address which provision is applicable to their motion. California appellate courts however have determined that the mandatory provision is not applicable to motions for summary judgment. (See English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138 [relief from summary judgment not available under mandatory provision of section 437, subdivision (b)]; see also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 [summary judgments are not within the purview of the mandatory relief provision].) The Court therefore will address the motion for relief under the discretionary provision.

Legal Standard

“The court may, upon any terms as may be just, relive a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).)

The Motion for Relief under Section 473, Subdivision (b) is DENIED.

To qualify for discretionary relief under section 473, subdivision (b), the party seeking relief must show (1) a proper ground for relief, and (2) “the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) “The party seeking relief under section 473 must be diligent, i.e., apply for relief within a reasonable time not to exceed six months after the judgment, dismissal, order, or proceeding was taken, and there must not be any prejudice to the opposing party if relief is granted.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.)

To be entitled to discretionary relief, Plaintiffs must demonstrate that the inadvertence, mistake, surprise, or neglect of counsel was “excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person might have made the same mistake under the same or similar circumstances. (Ibid.) Thus, discretionary relief is available only from attorney error that is “ ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ ” (Ibid.)

Since “the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston); see also Zamora, supra, 28 Cal.4th at p. 256.) For that reason, “a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Elston, supra, at p. 233.)

Plaintiffs here seek relief based on the submission of an erroneous declaration by Dr. Vikram Talwar, M.D. (“Dr. Talwar”), an orthopedic surgical expert. In opposing the motion for summary adjudication, Dr. Talwar, in his declaration, stated that Dr. Lowenberg did not perform Plaintiff’s operation, nor did he observe the operation, and failed to fulfill his duties as a teacher to ensure the surgery was being performed in the correct manner. The Court sustained SHC’s objections to the declaration for lack of personal knowledge, failure to set forth facts regarding Dr. Talwar’s qualifications, skills, and experience and based on speculation and conjecture. Plaintiffs argue the declaration was submitted in error due to the medical condition of their counsel, Marvin Lewis (“Lewis”). (See Bader Decl. at ¶ 4.) Plaintiffs contend they did not discover the error until the reply papers were received a few days before the hearing on the motion. (Id. at ¶ 11.) Plaintiffs thus were unable to timely submit a corrected version of the declaration for consideration by the Court in opposing the motion. Plaintiffs, with this motion, now submit a corrected declaration so the Court can reconsider its ruling on the motion for summary adjudication.

Plaintiffs’ argument is not persuasive as courts generally do not allow relief under section 473, subdivision (b) for an attorney’s unjustifiable negligence in discovering the law. In Martin v. Johnson (1979) 88 Cal.App.3d 595 (Martin), cited by SHC, the defendants were awarded summary judgment and the plaintiff thereafter filed a motion for relief under section 473, subdivision (b). (Id. at p. 603.) In support of the motion, plaintiff asserted “[t]hat [his] attorney inadvertently and mistakenly filed affidavits that were not within the personal knowledge of plaintiff.” (Ibid.) Plaintiff’s counsel’s declaration in support of the section 473 motion offered the following “excuse” for the submission of plaintiff’s defective declaration and exhibits at the time of the summary judgment motion: “ … it was our office’s decision that due to the lateness of time in filing our opposition papers and not wanting again to have to obtain a continuance, and believing that the affidavits were sufficient to allow plaintiff to state what other persons had told him personally, to attach said affidavits to our opposition papers.” (Ibid.)

The trial court denied the motion for relief and its order thereafter was affirmed on appeal. The appellate court determined that the declaration by plaintiff’s counsel failed to offer any adequate excuse to permit relief under section 473, subdivision (b). In doing so, the court stated:

“The failure to read carefully section 437c and thereby to realize that all affidavits filed in opposition to a motion for summary judgment must contain only admissible evidence demonstrates indifference … The conclusionary assertion that ‘the affidavits were mistakenly thought to be legally sufficient’ fails to explain why such an obvious mistake occurred. The circumstances here involve an easy, uncomplicated rule of law expressly embodied in the Code of Civil Procedure. We cannot say that such a misconception was reasonable or justifiable. Hence, in our view the trial court did not abuse its discretion in denying plaintiff’s motion to set aside the summary judgment pursuant to section 473, and its order is affirmed.”

(Martin, supra, 88 Cal.App.3d at p. 607.)

Similarly, in Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, the First Appellate District, in addressing a motion for relief under section 473, subdivision (b), stated in part:

“The issue is not whether the original opposition was insufficient to prevail, but rather whether the reason advanced for its insufficiency was ‘excusable’ within the meaning of section 473. The ‘reasonably prudent person standard’ … gives an attorney the benefit of such relief only where the mistake is one which might ordinarily be made by a person with no special training or skill. Obviously, an untrained person might be expected to make mistakes when performing the functions of an attorney; the acknowledged desirability of professional legal training presumes this to be so. Just as obviously, an attorney acting within his or her professional capacity is held to a different standard of care and may not be excused by section 473 from errors occurring during the discharge of strictly professional duties. [¶] The advancement of arguments is the very essence of the professional responsibilities assumed by attorneys; failure to timely make an argument cannot, therefore, be considered a mistake permitted to an untrained ‘reasonably prudent person’ within the meaning of section 473.”

(Id. at p. 684.)

Finally, in examining section 473, subdivision (b), the appellate court in Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1 stated:

“Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion. ‘There is nothing in section 473 to suggest it was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.’ [Citation.] Counsel’s failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473.”

(Id. at p. 17.)

Given these authorities, Plaintiffs are not entitled to relief under section 473, subdivision (b) for submitting a legally insufficient declaration in opposition to the motion for summary adjudication. Plaintiffs’ counsel was required to properly review and proofread Dr. Talwar’s declaration before providing it to the Court with the opposition. In opposing any motion for summary adjudication, it is the responsibility of counsel to make sure they submit admissible evidence for consideration by the court. (See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 [evidence submitted in opposition to a motion for summary judgment must be admissible].) The failure on the part of counsel to do so does not provide a legal basis for relief under the statute. Nor do Plaintiffs submit any declaration from attorney Lewis to support his medical condition and explaining why that condition played a role in submitting a faulty expert declaration to the Court. Finally, even if the Court were to now accept the newly corrected declaration from Dr. Talwar, it would still be inadmissible based on speculation and conjecture. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1458 [“Evidence that leads only to speculation or conjecture does not create a triable issue of fact”]; see also McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1106 [“An expert’s speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural”].)

Accordingly, the motion for relief under section 473, subdivision (b) is DENIED.

Motion for Reconsideration

Plaintiffs also move to reconsider the Court’s ruling on the motion for summary adjudication under section 1008.

Legal Standard

Code of Civil Procedure section 1008 represents the Legislature’s attempt to regulate what the Supreme Court has referred to as “repetitive motions.” (See Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 885, disapproved on other grounds in Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Motions for reconsideration are regulated by section 1008, subdivision (a), which requires that any such motion be (1) filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought, (2) supported by new or additional facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from it. (Ibid.)

The Motion for Reconsideration is DENIED.

Plaintiffs argue the motion for reconsideration should be granted as the corrected declaration of Dr. Talwar, submitted with the motion, constitutes new and different facts that could not be introduced at the time of the hearing on the motion for summary adjudication.

“A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment.” (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606; see Eddy v. Sharp (1988) 199 Cal.App.3d 858, 863, fn. 3 [“A motion for reconsideration may only be considered before entry of a judgment.”]; see also Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545 [a motion for reconsideration filed after judgment was signed was invalid].) As stated above, the Court entered judgment on May 16, 2019. Since Plaintiffs did not file their motion until May 17, 2019, the Court lacks jurisdiction to consider the request for reconsideration. (See Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237 [after entry of judgment, the trial court loses its power to rule on a reconsideration motion].)

Consequently, the motion for reconsideration under section 1008 is DENIED.