Opinion
E078446 E078956
10-25-2023
HOLLI S. BREAKFIELD, Plaintiff and Appellant, v. GI EXCELLENCE, INC. et al., Defendants and Respondents HOLLI S. BREAKFIELD, Plaintiff and Appellant, v. SCOTT BERTRAND et al., Defendants and Respondents
The Law Office of Evan D. Williams and Evan D. Williams for Plaintiff and Appellant. Davis, Grass, Goldstein &Finlay, Jeffery W. Grass, and Jennifer R. Koerner for Defendants and Respondents GI Excellence, Inc. and Indraneel Chakrabarty, M.D., M.A. Schuler & Brown and Michele L. Jackson for Defendant and Respondent James K. Johnson, CRNA. Murchison & Cumming, Scott Hengesbach, and Matthew E. Voss for Defendants and Respondents SB Anesthesia, Inc. and Scott Bertrand, CRNA.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. MCC1801330 MCC1801330, Angel M. Bermudez, Judge. Affirmed.
The Law Office of Evan D. Williams and Evan D. Williams for Plaintiff and Appellant.
Davis, Grass, Goldstein &Finlay, Jeffery W. Grass, and Jennifer R. Koerner for Defendants and Respondents GI Excellence, Inc. and Indraneel Chakrabarty, M.D., M.A.
Schuler & Brown and Michele L. Jackson for Defendant and Respondent James K. Johnson, CRNA.
Murchison & Cumming, Scott Hengesbach, and Matthew E. Voss for Defendants and Respondents SB Anesthesia, Inc. and Scott Bertrand, CRNA.
OPINION
RAMIREZ P. J.
Holli S. Breakfield filed this action for medical malpractice and willful misconduct against GI Excellence Inc., Indraneel Chakrabarty, M.D., M.A., SB Anesthesia, Inc., Scott T. Bertrand, CRNA, and James K. Johnson, CRNA. The trial court granted summary adjudication on the medical malpractice cause of action in favor of GI. It then granted summary judgment in favor of Nurse Johnson. Finally, based on Breakfield's failure to obey court orders compelling her deposition, it granted terminating sanctions.
We will refer to GI Excellence, Inc. and Dr. Chakrabarty collectively as GI.
We will refer to SB Anesthesia, Inc. and Nurse Bertrand collectively as SB.
Breakfield appeals, contending:
(1) The trial court erred by failing to grant Breakfield continuances to file oppositions to the motions for summary judgment.
(2) The trial court erred by granting terminating sanctions based on Breakfield's failure to submit to a deposition. Finding no error, we will affirm.
I
STATEMENT OF THE CASE
Breakfield filed this action in 2018. She was in propria persona most of the time, including during the motions at issue here.
In 2020, GI filed a motion for summary judgment. In her opposition, Breakfield requested a continuance. The trial court granted summary adjudication as to the medical malpractice cause of action but denied it as to the willful misconduct cause of action; thus, implicitly, it denied a continuance.
GI's motion for summary judgment is discussed in more detail in part II.A, post.
In 2021, Nurse Johnson filed a motion for summary judgment. Breakfield filed an ex parte application for a continuance, which the trial court denied. Breakfield then filed an untimely opposition. The trial court granted the motion and entered judgment in favor of Nurse Johnson.
Nurse Johnson's motion for summary judgment is discussed in more detail in part II.B, post.
Meanwhile, GI filed a motion for terminating sanctions, on the ground that Breakfield had disobeyed court orders compelling her to be deposed. SB followed up with a separate motion for terminating sanctions, on the same ground. In January 2022, the trial court granted GI's motion and entered judgment in its favor. In February 2022, the trial court granted SB's motion and entered judgment in its favor.
The motions for terminating sanctions are discussed in more detail in part III, post.
II
CONTINUANCES TO RESPOND TO THE MOTIONS FOR SUMMARY JUDGMENT
Breakfield contends the trial court erred by failing to allow her continuances to file oppositions to the motions for summary judgment.
A. GI's Motion for Summary Judgment.
1. Additional factual and procedural background.
GI's motion for summary judgment relied on the testimony of Dr. Lynn Connolly, an expert gastroenterologist, that (1) GI's treatment of Breakfield complied with the applicable standard of care, and (2) GI did not cause any harm to Breakfield.
Breakfield's opposition did not include any expert declaration regarding either the standard of care or causation. It did include an unsworn "Expert Opinion" by one Dr. Myung Wang Choi, a gastroenterologist, along with an unauthenticated copy of his curriculum vitae. He discussed the standard of care in a very general way; however, he did not point to any failure to follow the standard of care in this case. He did not discuss causation of Breakfield's alleged injuries at all.
Also in her opposition, Breakfield requested a continuance under Code of Civil Procedure section 437c, subdivision (h), asserting that she needed further discovery. In her supporting declaration, however, she did not explain what further discovery she needed or why.
The trial court ruled that Dr. Choi's statement was inadmissible because it was "not properly authenticated or sworn under oath. Furthermore, [his] opinions do not contradict Dr. Connolly's opinions and do not indicate that [GI] failed to meet the standard of care." It granted the motion for summary judgment as to the medical malpractice cause of action, based on Dr. Connolly's testimony as to both the standard of care and causation, noting that Breakfield had "produced no admissible evidence to challenge the findings of Dr. Connolly."
2. Discussion.
Under Code of Civil Procedure section 437c, subdivision (h), "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just."
"'Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that "facts essential to justify opposition may exist.'" [Citation.] 'The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.' [Citation.]" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.)
Here, Breakfield requested a continuance under Code of Civil Procedure section 437c, subdivision (h), so she could take further discovery. However, she did not specify what further discovery she needed. She also did not explain why she had not obtained the discovery sooner. Thus, she did not show good cause for a continuance.
Breakfield relies on Frazee v. Seely (2002) 95 Cal.App.4th 627. There, however, Frazee submitted a declaration stating "that deposition transcripts . . . had yet to be received from the reporter. Moreover, depositions previously scheduled had yet to take place, defendants were in the middle of deposing Frazee, answers to interrogatories were expected to arrive, and Frazee needed to depose expert witnesses who filed declarations in support of the motion." (Id. at p. 633.) The appellate court agreed that the experts' depositions "would be essential to opposing the motion," that Seely's own deposition "could be essential," and that "[f]urther time to receive and review [the depositions] would have been imperative to proving [Frazee's] allegation ...." (Id. at pp. 634-635.) Such a concrete, particularized showing of good cause is precisely what Breakfield did not submit.
Breakfield argues that her opposition had "'curable procedural deficiencies,'" and therefore the trial court had a duty to grant her a continuance to cure them.
"Terminating sanctions such as an order granting summary judgment based upon procedural error '"have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing [that] less severe sanctions would not produce compliance with the procedural rule. [Citations.]"' [Citations.]" (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364, fn. 16; see Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 92-99 [failure to file a separate statement]; Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315-318 [failure to file opposition due to attorney's unawareness that opposition previously filed had been stricken].)
Here, however, Breakfield's default was not wholly procedural. Admittedly, if given more time, she might have been able to redo Dr. Choi's statement in admissible form. The trial court, however, ruled not only that it was inadmissible, but also that it failed to contradict Dr. Connolly and failed to show any violation of the standard of care. Breakfield does not claim this was error. These are substantive deficiencies, not mere curable procedural deficiencies. It would be sheer speculation to suppose that, if granted a continuance, Breakfield would have been able to find a different expert who would have had a different (and more helpful) opinion.
In fact, it affirmatively appears that a continuance would have done Breakfield no good. On March 1, 2021, she filed a motion to reconsider the grant of summary adjudication. On March 24, 2021, the trial court denied it, noting that she still had not retained an expert gastroenterologist.
Thus, the trial court properly denied a continuance. However, we also note that, even if it erred, the error was harmless. (See Cal. Const. art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) The action was eventually terminated based on Breakfield's failure to obey orders compelling her deposition. In part III, post, we uphold the termination. Thus, even if summary adjudication had been denied, Breakfield would not have prevailed.
B. Nurse Johnson's Motion for Summary Judgment.
1. Additional factual and procedural background.
After Nurse Johnson filed a motion for summary judgment, Breakfield filed an ex parte application to continue the hearing on the motion for 35 days. She argued that the motion was based on the expert testimony of one Dr. Michael Kissen and that she needed to depose him. In support of the application, she submitted her own declaration stating, "The information from Dr. Kissen will allow me to properly oppose the motion with more clarification as well as allow an expert to understand the evidence used in the Declaration to address it directly." "[I]t [is] indispensable to depose the expert to pin point the exact evidence and materials [he] relied upon ...." She attached a notice setting Dr. Kissen's deposition for December 27, 2021; however, it had no proof of service.
Nurse Johnson's motion is not in the record.
In her declaration - though not in the application itself - Breakfield also claimed that she needed to depose Nurse Johnson and to get his interrogatory responses.
Nurse Johnson filed an opposition to the application for a continuance. The trial court denied the application, without stating reasons.
Also not in the record.
Breakfield filed an untimely opposition to the motion for summary judgment. (See Code Civ. Proc., § 437c, subd. (b)(2).)
Also not in the record.
At the hearing on the motion, Breakfield referred back to her ex parte application for a continuance and argued again that she had been denied the opportunity to depose Dr. Kissen. The trial court noted that the time to designate experts had run. Counsel for GI represented: "We did receive an expert designation. However, she did not designate any retained experts. She only listed treating physicians." Breakfield argued that she could still call an undesignated rebuttal expert.
The trial court then granted the motion, based on Dr. Kissen's testimony.
2. Discussion.
Breakfield has forfeited this contention by failing to provide us with an adequate record. "'[[T]he appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
We do not have Nurse Johnson's opposition to the ex parte application for a continuance; therefore, we do not know what grounds he asserted for the denial of a continuance. We also do not have Nurse Johnson's motion for summary judgment. He might have been entitled to summary judgment on grounds other than Dr. Kissen's opinion; if so, the denial of a continuance was harmless.
Moreover, on the record that we have, it does not appear that Breakfield could have deposed Dr. Kissen. The initial trial date was June 25, 2021. Expert depositions may be taken up to 15 days before the initial trial date. (Code Civ. Proc., § 2024.030.) Although the trial date had been continued to January 28, 2022, that did not automatically extend the expert deposition cut-off. (Ibid.; see also Code Civ. Proc., § 2024.020, subd. (b).) We have not found any trial court order extending any discovery cut-offs or reopening discovery.And if there was a stipulation to extend discovery, it is not in the record. Thus, Breakfield cannot show that, even with a continuance, she could have deposed Dr. Kissen.
Some discovery did occur after the initial trial date, but it seems to have been conducted pursuant to motions to compel.
Finally, Breakfield was not entitled to a continuance because she did not show diligence. While there is some contrary authority (see Braganza v. Albertson's LLC (2021) 67 Cal.App.5th 144, 154-156), in this particular district and division, "a party who seeks a continuance under section 437c, subdivision (h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner .... [Citation.]" (Id. at p. 156.)
Likewise, a party who seeks an ordinary, nonstatutory continuance must show diligence. (Johnson v. Alameda County Medical Center, supra, 205 Cal.App.4th at p. 533.) Indeed, the 35-day continuance Breakfield sought - i.e., from December 29, 2021, to February 2, 2022 - would have required a continuance of the trial date, which was January 28, 2022. "A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it." (Code Civ. Proc., § 595.4.)
Arguably, a showing of mistake, inadvertence, surprise, or excusable neglect could make up for a failure to show diligence. We need not decide this point, as Breakfield also failed to make this alternative showing.
The parties had exchanged expert witness information. Obviously, Nurse Johnson had designated Dr. Kissen. Moreover, on October 21, 2021, Nurse Johnson had filed his motion for summary judgment, which was based on Dr. Kissen's testimony. Nevertheless, as of Breakfield's application for a continuance on December 14, 2021, she still had not yet deposed him, nor did she offer an explanation for failing to depose him. Thus, she failed to show diligence, as a matter of law. Accordingly, the trial court had to deny her request for a continuance.
Finally, once again (see part II.A, ante), the error was harmless because the action was eventually terminated based on Breakfield's failure to obey orders compelling her deposition.
III GRANT OF TERMINATING SANCTIONS
Breakfield contends that the trial court erred by granting terminating sanctions based on her violation of court orders compelling her deposition.
A. Additional Factual and Procedural Background.
The following facts are taken from the declarations and exhibits filed in support of and in opposition to the motions for terminating sanctions.
Breakfield's deposition was noticed for January 14, 2021. She appeared, but she "refused to answer even the most basic questions."
SB filed a motion to compel. On April 26, 2021, the trial court granted the motion and ordered Breakfield to pay $2,145 in sanctions.
Breakfield's deposition was noticed, successively, for May 26, June 8, June 25, July 22, July 30, and August 17, 2021. These notices all resulted in "nonappearances and failed attempts."
Her deposition was noticed again for August 23, 2021. The deposition started. However, Breakfield misrepresented the trial court's order to her then-counsel, which resulted in the deposition being suspended to seek clarification.
On September 8, 2021, at an informal discovery conference with the trial court, Breakfield's counsel agreed that GI would notice a new deposition and that Breakfield would appear. GI served a notice of deposition for September 15, 2021. On September 13, 2021, Breakfield's counsel said he was no longer representing her. On September 14, 2021, Breakfield refused to appear at the deposition, claiming her counsel did not tell her about it.
GI treats this agreement as a court order. However, there is no such order in the record.
After clearing the date with Breakfield, GI served a notice of deposition for October 19, 2021. Breakfield then filed a motion for a protective order. On November 9, 2021, the trial court denied the motion.
Breakfield refused to agree to any new date, so GI unilaterally noticed her deposition for November 23, 2021. On November 19, Breakfield refused to appear on the date set. GI asked her to pick a new date, but she did not.
Meanwhile, after likewise clearing the date with Breakfield, SB served a notice of deposition for October 29, 2021. On October 28, Breakfield filed a motion to quash the deposition. On December 13, the trial court denied the motion. It ordered Breakfield "to appear for one additional deposition and to provide substantive answers to all deposition questions unless privileged information is involved." It also ordered Breakfield to pay $3,500 in sanctions.
SB served a notice of deposition for December 22, 2021. Breakfield served objections and did not appear.
In connection with other discovery disputes, the trial court had awarded sanctions against Breakfield three times, totaling $3,355.
In her opposition, Breakfield did not dispute any of these facts.
B. Discussion.
If a party fails to obey a court order compelling the party to be deposed, a trial court can impose a terminating sanction. (Code Civ. Proc., §§ 2023.030, subd. (d), 2025.450, subd. (h).)
"'"A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction."' [Citation.]
"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.' [Citation.]
"'The question before us "'is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose.'"' [Citation.]
"'We review the trial court's order under the abuse of discretion standard and resolve all evidentiary conflicts most favorably to the trial court's ruling. We will reverse only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. [Citation.] We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent.' [Citation.]" ( Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701-702.)
Breakfield asserts that terminating sanctions were erroneous for three reasons.
First, she argues that the trial court "failed to consider the totality of the circumstances," in that it did not "explicitly find . . . that there ha[d] been a specific detriment to the opposing party." But it did. It found that as of January 12: "It would be patently unfair to the defense with trial pending on January 28th to have so little time to digest how their clients are alleged to have been responsible. This is not a 'sub-witness' for [Breakfield]. This is [Breakfield]'s main evidence."
Breakfield claims that the fact that GI was able to file a motion for summary judgment proves that it had already deposed her adequately. That motion, however, was largely based on expert testimony, not on any admissions by Breakfield. In any event, GI had to be concerned that its motion for summary judgment might be denied; then, it would have to go to trial without full disclosure of Breakfield's testimony on matters and issues beyond those involved in the summary judgment motion.
Second, she argues, "the record shows that . . . Breakfield was engaged in the discovery process." The only way she can make this claim with a straight face is by omitting any factual account of the many notices of deposition, her many failures and refusals to appear, and the trial court's many previous orders compelling discovery and awarding sanctions. She claims she "sat for two depositions." Both depositions, however, terminated prematurely, resulting in the trial court granting motions to compel.
Third, she argues that the trial court erred by finding that lesser sanctions were "impossible." The trial court's actual finding was: "Throughout the proceeding, [Breakfield] made little to no attempt to meet and confer in good faith concerning the deposition or other discovery disputes. [Breakfield] has been sanctioned and admonished on previous occasions, but persists in blocking discovery attempts. As such, it does not appear that less severe sanctions will be sufficient.
"The court considered evidentiary sanctions. However, the only just sanction would be the denial of this witness' testimony. That would de facto lead to the same conclusion as the termination.... Nor does it appear that this court's order to comply with a deposition has any influence over [Breakfield]. Finally, in that [Breakfield] has not retained an expert to support her claim for professional malpractice, imposing a sanction along the line of limiting the expert's testimony or the like is impossible."
Breakfield's only response is to argue that she could have sought leave to designate an expert belatedly (see Code Civ. Proc., §§ 2034.610, 2034.710), and she could have called an undesignated rebuttal expert. The trial court's point about an expert, however, was still sound. She had no absolute right to designate an expert belatedly, and apparently, she did not appear to intend to do so. Thus, barring her from doing so was a toothless sanction. The possibility that she would call a rebuttal expert was speculative. Even if she did, precluding his or her testimony would be a mere slap on the wrist.
Moreover, as GI points out, it had been granted summary judgment on the medical malpractice cause of action. Thus, as against GI, Breakfield did not need to call an expert. (See Hulbert v. Cross (2021) 65 Cal.App.5th 405, 416-417 [ordinarily, medical malpractice plaintiff must call expert to establish standard of care and breach].) Precluding her from doing so would be a hollow remedy, at least for GI.
Breakfield does not challenge the trial court's finding that, given her contumacious disregard of her discovery obligations, "it does not appear that less severe sanctions will be sufficient." She likewise does not challenge its finding that "the only just sanction" would be to preclude Breakfield's own testimony, and that this would be the equivalent of a terminating sanction. Even if the trial court's point about an expert witness was wrong - and it was not - the error was harmless.
Although Breakfield specifically says she is asserting only these three arguments, she also argues that her discovery violations were not willful because she was in propria persona.
"A party who chooses to act as his or her own attorney '"is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]"' [Citation.] 'Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.' [Citations.]" (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31.)
Breakfield cites Gamet v. Blanchard (2001) 91 Cal.App.4th 1276. Gamet opined that, "when an in propria persona litigant is involved, special care should be used to make sure that verbal instructions given in court and written notices are clear and understandable by a layperson." (Id. at p. 1284.) It acknowledged, however, that "in propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure. [Citation.] They are . . . entitled to treatment equal to that of a represented party." (Ibid.)
Breakfield does not point to any instance in which the trial court gave her an unclear instruction or an incomprehensible notice. She was served with a notice of ruling of the trial court's first order that she appear. She was present, representing herself, when the trial court issued its second order that she appear. She knew she had to submit to a deposition; she simply refused to do it.
IV DISPOSITION
The judgments appealed from are affirmed. All respondents are awarded costs on appeal against Breakfield.
We concur: McKINSTER J. MENETREZ J.