Douglas v. Zimmerman CA2/8 ( 2020 )

Filed 8/26/20 Douglas v. Zimmerman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
ALAN DOUGLAS, B294801
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC657529)
v.
NANCY ZIMMERMAN et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County. William F. Fahey, Judge. Affirmed.
Alan Douglas, in pro. per., for Plaintiff and Appellant.
Leibl, Miretsky & Mosely, Kathryn S.M. Mosely and Lee M.
Moulin for Defendants and Respondents Timothy Daskivich and
Cedars-Sinai Medical Center.
Reback, McAndrews & Blessey, Robert C. Reback, Tayaba
Sarah Attar, and Stephen A. Diamond for Defendants and
Respondents Nancy Zimmerman and Jay Neal Schapira.
__________________________
SUMMARY
Plaintiff is a self-represented litigant who appeals from the
judgments entered for defendants in two medical malpractice
lawsuits. Plaintiff’s appellate briefs violate several appellate
rules, fail to make any cogent argument supported by citation to
pertinent legal authorities, and raise irrelevant legal points that
have no relation to his claims. This failure to comply with the
rules governing appeals means that plaintiff has forfeited his
claims on appeal. Even if he had not forfeited his arguments, we
would still affirm the judgments against him. In one case, his
claims are barred by the statute of limitations, and in the other,
he presented no expert declaration to counter defendants’ expert
opinions that no malpractice occurred. We affirm the judgments.
FACTS
1. The Background
On January 29, 2016, plaintiff had a heart attack
(myocardial infarction) that he thinks was caused by the
negligence of one or more defendants. This is what happened
before that event.
On January 15, 2016, plaintiff consulted with Dr. Timothy
Daskivich, a urologist, for an evaluation of a prostate lesion.
Plaintiff had a history of coronary artery disease and was taking
daily low dose aspirin. Dr. Daskivich recommended plaintiff
undergo a prostate biopsy to rule out prostate cancer. Plaintiff
elected to do so. Dr. Daskivich sent plaintiff to plaintiff’s
cardiologist, Dr. Jay Schapira, to obtain prebiopsy clearance to
abstain from nonsteroidal anti-inflammatories (NSAID’s) and
aspirin for seven days before the biopsy.
Plaintiff went to Dr. Schapira’s office that same day, and
was evaluated by Nancy Zimmerman, a nurse practitioner who
2
worked under Dr. Schapira’s supervision. Ms. Zimmerman
cleared plaintiff for the biopsy, concluding the biopsy was a low
risk procedure and plaintiff was a low risk patient. She advised
plaintiff he could hold NSAID’s and aspirin therapy for seven
days before the biopsy, and to resume as soon as possible after
urologic clearance. Dr. Schapira signed off on Ms. Zimmerman’s
findings and recommendations.
On January 29, 2016, Dr. Daskivich performed the biopsy.
After the biopsy, Dr. Daskivich’s staff monitored plaintiff for
worrisome symptoms, ensured he was able to urinate before
leaving the doctor’s office, and discharged him with follow-up
instructions, allowing him to drive home.
Later the same day, plaintiff went to the emergency
department of Cedars-Sinai Medical Center with complaints of
chest pain. He was diagnosed with a myocardial infarction and
admitted for care and treatment. He was discharged on
January 31, 2016.
2. The Litigation
On January 25, 2017, less than a year after his heart
attack, plaintiff served a notice of intent to file suit against
Dr. Daskivich, specifically referring to the clearance for the
biopsy and stopping the anticoagulants in advance of the biopsy
as the negligent cause of his myocardial infarction and resulting
cardiac tissue damage.
On April 11, 2017, plaintiff filed his complaint for medical
malpractice against Dr. Daskivich.
On March 5, 2018, more than two years after his heart
attack, plaintiff filed another lawsuit for medical malpractice
against Dr. Schapira, Ms. Zimmerman and Cedars-Sinai Medical
3
Center. The operative second amended complaint was filed
July 12, 2018.
On November 14, 2018, the two lawsuits were consolidated
and assigned to Judge William F. Fahey for all purposes.
a. Dr. Daskivich
On August 24, 2018, Dr. Daskivich filed a motion for
summary judgment, supported by the opinion of Dr. Philip G.
Pearson, a board-certified urologist practicing in that field since
1999. Dr. Pearson opined that the care and treatment of plaintiff
by Dr. Daskivich and his staff were within the standard of care,
for reasons he set forth at length, and that no conduct on their
part was a substantial cause of plaintiff’s subsequent myocardial
infarction.
On October 30, 2018, plaintiff filed his opposition to
Dr. Daskivich’s summary judgment motion, but presented no
expert opinion to counter the expert opinion of Dr. Pearson.
After a hearing on January 31, 2019, the trial court entered
a minute order granting summary judgment to Dr. Daskivich
(and to Cedars-Sinai, see post). After opposition from plaintiff,
the court entered judgment in favor of Dr. Daskivich on
February 19, 2019. Several days later, on February 22, 2019, the
court issued an order addressed “to plaintiff in pro per”
(capitalization omitted), stating the court found “no triable issues
of material fact”; that “Dr. Daskivich complied with the
applicable professional standards of care in his care and
treatment of plaintiff”; and that “the actions of Dr. Daskivich
were not a substantial cause of plaintiff’s alleged injuries and
damages.”
4
b. Dr. Schapira and Ms. Zimmerman
On August 30, 2018, Dr. Schapira and Ms. Zimmerman
demurred to plaintiff’s second amended complaint on the ground
it was time-barred by Code of Civil Procedure section 340.5.
Under section 340.5, a claim based on a health care provider’s
professional negligence must be filed within “three years after
the date of injury or one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered,
the injury, whichever occurs first.” Defendants argued that the
one-year provision applied.
Plaintiff filed his opposition on November 27, 2018.
A hearing was held on December 13, 2018. The following
day, the court issued a minute order sustaining defendants’
demurrer without leave to amend. The court described the
operative complaint as alleging plaintiff “should not have been off
blood thinning medication before he had a biopsy on January 26,
2016 [sic] and this caused his heart attack.” Accordingly, the
court concluded, plaintiff “was at a minimum put on inquiry
notice as of that date” and the one-year statute of limitations
began to run. The court further observed that in plaintiff’s
two “oversized and rambling oppositions,” he failed to respond to
defendants’ arguments and authorities on the statute of
limitations.
Judgment was entered in favor of Dr. Schapira and
Ms. Zimmerman on January 18, 2019.
c. Cedars-Sinai
On November 16, 2018, Cedars-Sinai filed a motion for
summary judgment on the ground plaintiff’s complaint was
barred by the statute of limitations, and alternatively, because
Cedars-Sinai complied with the applicable standard of care in the
5
care and treatment provided to plaintiff. Its motion was
supported by the declaration of Dr. Daniel Wohlgelernter, a
board-certified cardiologist practicing in the Los Angeles area
since 1985. He opined, giving reasons, that the cardiology
clearance, ordering plaintiff to discontinue aspirin before the
biopsy, was within the standard of care, and that no conduct on
the part of Cedars-Sinai or its staff and nursing personnel was a
substantial cause of plaintiff’s myocardial infarction and heart
tissue damage.
On December 5, 2018, plaintiff filed his opposition to
Cedars-Sinai’s motion for summary judgment, but again included
no expert medical opinion. Cedars-Sinai filed its reply on
January 23, 2019, pointing out (as did Dr. Daskivich) that
plaintiff failed to submit the required expert evidence.
Two days later, plaintiff filed an opposition to Cedars-
Sinai’s reply, including as an exhibit an unsworn, undated letter,
apparently from a doctor in New York State, stating that “[t]he
malpractice was stopping the aspirin which directly caused the
restenosis of the LAD stent which directly caused the [myocardial
infarction].”
The trial court heard Cedars-Sinai’s motion (along with
Dr. Daskivich’s) at the January 31, 2019 hearing and, as
mentioned above, granted both motions. After various objections
from plaintiff, on February 14, 2019, the court signed an order
granting summary judgment to Cedars-Sinai. The court found
that Cedars-Sinai “complied with the applicable professional
standards of care in its care and treatment of plaintiff,” and that
“the actions of [Cedars-Sinai] were not a substantial cause of
plaintiff’s alleged injuries and damages.” Judgment was entered
for Cedars-Sinai that same day.
6
d. Postjudgment filings and orders
In the wake of these unfavorable judgments, plaintiff filed
four “ex parte applications” on March 15, 2019. He sought
“default judgments” in both of the lawsuits, despite all
defendants having already obtained judgments in their favor. He
sought to file a peremptory challenge against Judge Fahey under
Code of Civil Procedure section 170.6, and he sought to disqualify
Judge Fahey under sections 170.1 (grounds for disqualification)
and 170.3 (procedure). All these applications were denied on
March 15, 2019.
Then, on March 28, 2019, plaintiff filed two further ex
parte applications seeking to file a peremptory challenge and to
disqualify Judge Fahey, plus a third ex parte application “to
compel and enforce settlement.” The first two were denied for
lack of jurisdiction, because plaintiff had already appealed from
the March 15 denial of the same motions. The third was denied
because it should have been filed in Judge Fahey’s court.
Plaintiff filed notices of appeal from the three judgments,
from the March 15, 2019 order denying the four ex parte
applications, and from the April 2, 2019 order denying the
three subsequent ex parte applications.
DISCUSSION
In the end, there are only two issues that merit discussion.
These are whether the Zimmerman lawsuit was filed within the
statute of limitations, and whether there was admissible evidence
of any failure to comply with the applicable standard of care in
the medical treatment provided to plaintiff. Plaintiff does not
provide a cogent discussion of either of these issues, and
accordingly forfeits them. But in any event, the legal answers
are clear.
7
1. Forfeiture
We will not burden this opinion with a description of the
rules plaintiff has not followed in his appellate briefing. (Cal.
Rules of Court, rule 8.204.) A review of his briefs makes this
clear. The flaws are not simply a matter of format; they are
substantive. We are unable to find any coherent legal argument
that might conceivably justify a reversal of the judgments.
Instead, plaintiff’s principal points seem to be that the statute of
limitation is three years, not one year from the date of discovery
of his injury; he is entitled to know which defendant ordered him
to stop taking aspirin; the trial court’s rulings were made with
“gross bias and prejudice,” partly on account of opposing counsel
who presented incomplete expert testimony; and the rulings
improperly contradicted “all evidence” presented in the entire
record. None of this is supported by coherent legal argument or
pertinent legal authorities.
“ ‘In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.’ ” (United Grand Corp.
v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146.)
Plaintiff has not done so here, and accordingly has forfeited his
claims of trial court error. Even so, there was no error.
2. The Demurrer Ruling—Statute of Limitations
A demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo, and accept as true all material
facts alleged, but not contentions, deductions or conclusions of
fact or law. We also consider matters that may be judicially
noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Here, the complaint shows that it is barred by the statute
of limitations. Plaintiff was required to file his medical
8
malpractice suit within “one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered,
the injury.” (Code Civ. Proc., § 340.5.) Plaintiff knew he was
injured on the date of his heart attack, January 29, 2016. The
complaint alleges that Dr. Daskivich sent plaintiff to plaintiff’s
cardiologist (Dr. Schapira), who had been treating him since
2012, “to obtain a medical clearance,” and plaintiff had the biopsy
“without the benefit of his blood thinning aspirin.” (Indeed,
plaintiff’s own notice of his intention to file suit against
Dr. Daskivich, on January 25, 2017, specifically states plaintiff
“was asked to stop blood thinner, which caused 100% in-stent
thrombosis.”)
Plaintiff knew he was injured on January 29, 2016, or, as
the trial court observed, at a minimum, plaintiff was on inquiry
notice he had been injured on the date of his heart attack, and
that is when the one-year statute of limitations began to run. It
is clear plaintiff actually knew of the allegedly negligent cause of
his injury—stopping the blood thinner—no later than January
25, 2017. Under either theory, actual or inquiry notice, his
lawsuit filed on March 5, 2018, was not filed within one year of
the time he “discover[ed], or through the use of reasonable
diligence should have discovered, the injury” and its negligent
cause. (See Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290
[“The one-year limitation period of [Code of Civil Procedure]
section 340.5 is a codification of the discovery rule, under which a
cause of action accrues when the plaintiff is aware, or reasonably
should be aware, of ‘injury,’ a term of art which means ‘both the
negligent cause and the damaging effect of the alleged wrongful
act.’ ”].)
9
We further note that, on appeal, plaintiff has the burden to
demonstrate error in the trial court’s judgment. But, as in the
trial court, plaintiff’s appellate briefs fail to address the ground
on which the trial court sustained the demurrer—the statute of
limitations—except to assert, without elaboration or discussion,
that it is three years. As we have seen, that is not the case. The
trial court properly sustained Dr. Schapira and Ms. Zimmerman’s
demurrer without leave to amend.
3. The Summary Judgment Rulings
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).) Our review is de novo. (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1037.)
In a medical malpractice case, a plaintiff must establish the
health care provider failed to comply with the appropriate
standard of care, and that this failure was a cause of the
plaintiff’s injury. “ ‘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
[citations], unless the conduct required by the particular
circumstances is within the common knowledge of the layman.’ ”
(Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
Here, as we have related in the facts section, ante, both
Dr. Daskivich and Cedars-Sinai presented the opinions of
10
qualified expert witnesses to establish their conduct complied
with the applicable standards of care. To establish a dispute of
fact on this issue, plaintiff had to present an expert’s opinion,
giving reasons, explaining how defendants failed to comply with
the standard of care. Plaintiff did not do so.
In his reply brief, plaintiff points to the letter described
above (p. 6, ante), to the effect that stopping the aspirin was
malpractice. The letter was inadmissible on numerous grounds,
among them that it is neither a sworn statement nor an unsworn
statement declared to be true under penalty of perjury. (See
Code Civ. Proc., § 2015.5; Bozzi v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 761 [“Evidence in support of and in
opposition to a summary judgment motion must be admissible,
just like at trial.”].) Without such evidence, plaintiff cannot prove
his medical negligence claim. Accordingly, summary judgment
was proper in both cases.
4. The Postjudgment Orders
Finally, there is no merit in plaintiff’s appeals of the trial
court’s denial of his ex parte applications.
First, one cannot obtain a default judgment against
defendants who have already obtained judgments in their favor.
Second, a peremptory challenge to a trial judge in a civil
cause “that has been assigned to a judge for all purposes” must be
made “within 15 days after notice of the all purpose assignment.”
(Code Civ. Proc., § 170.6, subd. (a)(2).) That happened on
November 14, 2018, so plaintiff’s application was untimely. Nor
does the record reveal any legitimate ground for disqualification
of Judge Fahey under sections 170.1 and 170.3, even if plaintiff’s
applications to do so, weeks after the entry of judgments against
him, were procedurally proper.
11
Third, plaintiff’s ex parte application to compel and enforce
a settlement under Code of Civil Procedure section 664.6 was
properly denied because the parties did not agree at any time to
settle the case, and cannot be compelled to do so.
DISPOSITION
The judgments are affirmed. Defendants shall recover
costs of appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
12