Opinion
E064943
11-20-2017
ROBERT P. HERSHOWITZ, Plaintiff, v. ROBERT JOHN JOSEPH II et al., Defendants and Respondents, JOHN R. MITTELMAN, Objector and Appellant.
John R. Mittelman, in pro. per.; The Arkin Law Firm, Sharon J. Arkin; James Matthew Brown for Objector and Appellant. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1501267) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. John R. Mittelman, in pro. per.; The Arkin Law Firm, Sharon J. Arkin; James Matthew Brown for Objector and Appellant. No appearance for Defendants and Respondents.
I. INTRODUCTION
Objector and appellant, John Mittelman, former counsel of record for plaintiff, Robert P. Hershowitz, appeals from the judgment dismissing this medical malpractice action. Mittelman challenges, on several grounds, the court's prejudgment order of November 2, 2015, imposing $3,016 in sanctions against Mittelman for filing this action (the Joseph action), pursuant to Code of Civil Procedure section 128.7. (§ 904.1, subd. (b) [sanctions orders of $5,000 or less may be reviewed on appeal from judgment in main action].) No respondents' brief has been filed. We affirm the order imposing the monetary sanctions.
The $3,016 amount included defendants' attorney fees incurred in preparing a demurrer to the complaint and a motion to strike, in preparing and attending the hearing on the sanctions motion, and a total of $600 in court costs.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTS AND PROCEDURE
A. General Background/the Signorelli and Joseph Actions
In 2004, plaintiff injured his feet while working as a refrigeration repairman and filed a worker's compensation claim. The State Compensation Insurance Fund (the SCIF) appointed a podiatrist, Dr. Domenic Signorelli, to treat plaintiff. Between 2004 and 2009, Dr. Signorelli performed a total of six surgeries on plaintiff's feet—two on the bottom of each foot and one on the back of each heel. Plaintiff was dissatisfied with his progress following each surgery, and claimed each surgery progressively worsened his condition.
In June 2010, Mittelman, on behalf of plaintiff, filed suit against Dr. Signorelli for medical malpractice (Hershowitz v. Domenic Signorelli, D.P.M., Riverside County Superior Court case No. RIC 10012982 (the Signorelli action)), alleging Dr. Signorelli was negligent in his "examination, diagnosis, care and treatment" of plaintiff's feet between 2004 and 2008. Plaintiff first designated Dr. Tye Ouzounian as a retained expert witness in the Signorelli action, but later designated Dr. Ouzounian as a nonretained expert and qualified medical examiner (QME) who would testify concerning the standard of care and cause of plaintiff's injuries.
In February 2015, as the Signorelli action was nearing the expiration of the five-year period for bringing the action to trial (§ 583.310), Mittelman sought to continue the trial and reopen discovery on what he claimed was "newly discovered evidence," namely, that the four surgeries to the bottoms of plaintiff's feet "were a sham" because they had never been performed, and this had caused plaintiff additional damages. On February 3, 2015, the court in the Signorelli action (Judge Gloria Connor Trask) denied Mittelman's ex parte motion to file a first amended complaint. That proposed first amended complaint is not part of the record on this appeal, but was ostensibly based on the evidence that the four surgeries to the bottoms of plaintiff's feet had never been performed.
During a court hearing in the Signorelli action on February 13, 2015, Mittelman explained that, on January 11, 2015, while he was preparing Dr. Ouzounian to testify in the Signorelli action, Dr. Ouzounian revealed for the first time that a 2009 MRI of plaintiff's feet showed that none of the four surgeries to the bottoms of plaintiff's feet had been performed. Mittelman admitted there were "4,000 pages of records" in the Signorelli action, and the 2009 MRI was "in that stack of records," but he claimed the "import" of the 2009 MRI was not understood until he spoke with Dr. Ouzounian on January 11, 2015. Mittelman submitted a declaration signed on January 30, 2015, by Dr. John G. Lieu, a board certified radiologist, who affirmed that there was nothing in two "MRI studies" of plaintiff's feet, taken on September 11, 2006 and November 9, 2009, "to suggest that the plantar fascia in either foot was ever resected by Domenic Signorelli, DPM," or that the four surgeries had been performed.
Counsel for Dr. Signorelli argued the MRI evidence was not newly discovered, that the Signorelli action had been continued "many, many times," and that Mittleman's delay until January 11, 2015, "to get his theories from his expert" was not a reasonable basis for reopening discovery. The court in the Signorelli action denied Mittelman's request to reopen discovery. In April 2015, the Signorelli action was tried and resulted in a defense verdict. Though the record on this appeal does not include complete transcripts of the trial on the Signorelli action, Mittleman claims plaintiff was "forced to limit his claims in [the Signorelli action] to the last two back-of-the-heel surgeries."
Mittelman claimed he incurred around $70,000 in costs in the Signorelli action.
On February 2, 2015, Mittelman filed this action, the Joseph action, naming another podiatrist, Dr. Robert John Joseph II, D.P.M., and Ocean Regional Surgical Podiatric Group (Ocean Regional), as defendants. The complaint alleged Dr. Joseph "'negligently performed as an assistant surgeon'" on the same six surgeries that Dr. Signorelli performed on plaintiff's feet, resulting in injuries to plaintiff. The complaint alleged claims for medical malpractice, breach of fiduciary duty, battery, conspiracy, and unfair business practices. B. The Sanctions Motion
In March 2015, the defendants in the Joseph action demurred to the complaint in the Joseph action and, in April 2015, the defendants filed the present motion for sanctions, after notifying Mittelman by letter on March 2, 2015, of their intention to file the sanctions motion after the 21-day safe harbor period for dismissing the complaint expired. (§ 128.7, subd. (c).) The sanctions were sought pursuant to sections 128.5 and 128.7. In their sanctions motion, the defendants claimed the Joseph action was barred by the three-year limitations period of section 340.5. Mittelman did not dismiss the complaint within the 21-day safe harbor period. Instead, he filed a first amended complaint on April 13, 2015, alleging an additional claim for "intentional misrepresentation." On April 24, 2015, Dr. Signorelli was added as a defendant in the Joseph action.
Before filing a motion for sanctions under section 128.7, a party must first serve the motion on the opposing party and provide that party 21 days to withdraw the challenged pleading. (§ 128.7, subd. (c)(1).) This 21-day safe harbor period permits a party to avoid sanctions by withdrawing the challenged pleading. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 436, fn. 3, 441.)
In a declaration in opposition to the sanctions motion, Mittelman again explained—as he did when he sought to continue the trial and reopen discovery in the Signorelli action—that he first discovered, on January 11, 2015, that the four surgeries to the bottoms of plaintiff's feet had not been performed when he was discussing the Signorelli case with Dr. Ouzounian. Mittelman provided many additional details concerning his late discovery of defendants' alleged fraud or nonperformance of the four plantar fascia surgeries.
Mittelman explained that the four surgeries were to be "fasciectomy procedures" to cut the plantar fascia or soft tissue of plaintiff's feet. But MRI's of plaintiff's feet taken after the surgeries showed that the plantar fascia were "pristine" and had never been cut. Mittleman explained Dr. Ouzounian had rendered opinions in the Signorelli action that the fifth and sixth surgeries by Dr. Signorelli to the heels of plaintiff's feet "were inadequate" because they had "failed to address the underlying pathology of a chronic condition known as Achilles Insertional Tendinosis." This condition had caused "a weakening of the attachment of the Achilles tendon at the bottom back of Plaintiff's heels."
When Mittleman was preparing Dr. Ouzounian to testify in the Signorelli action on January 11, 2015, Dr. Ouzounian for the first time expressed "reservations" about whether Dr. Signorelli had performed the first two of the four plantar fascia surgeries in August and September 2005. Dr. Ouzounian "pointed to an MRI study dated 9/11/2006," taken roughly one year after the first two plantar fascia surgeries were performed in August and September 2005, and noted "the MRI images seemed to show a continuous plantar fascial band in each foot." (Italics added.) When Mittelman asked Dr. Ouzounian why he had never mentioned this before, the doctor explained he had focused on the fifth and sixth surgeries to the backs of plaintiffs' heels, and had not been focused on the four plantar fascia surgeries.
The third and fourth plantar fascia surgeries were performed in December 2006. According to Dr. Ouzounian, the third and fourth plantar fascia surgeries were necessary, "ostensibly because scar tissue had formed and the plantar fascia had 'grown back together.'" In 2009, plaintiff was sent to Dr. Steven Ross for "repair surgeries" on each foot. In preparing for these surgeries, Dr. Ross ordered MRI studies of each foot, and these MRI studies were completed on November 9, 2009, nearly three years after Dr. Signorelli performed the third and fourth "sham" plantar surgeries in December 2006. On January 11, 2015, Dr. Ouzounian did not have copies of the November 9, 2009, MRI "films," but noted that reports of the 2009 MRI studies for each foot stated: "'PLANTAR FASCIA: Normal. No tear or surrounding soft tissue edema to suggest fasciitis.'"
On January 20, 2015, Mittelman sent the "9/11/2006 and 11/9/2009 MRI studies" to Dr. Lieu, a "board certified musculoskeletal radiologist," for a "'cold review'" of the MRI studies. On January 26, 2015, Dr. Lieu reported to Mittelman that the 2006 and 2009 MRI studies—in Mittelman's words—"conclusively demonstrated that no transection or resection of the plantar fascia was ever done." As noted, in a declaration signed on January 30, 2015, Dr. Lieu explained that, based on his review of the 2006 and 2009 MRI studies and reports of those MRI studies by two other radiologists, he saw nothing in either study "to suggest that the plantar fascia in either foot was ever resected" by Dr. Signorelli.
Mittleman also argued that the three-year limitations of section 340.5 was tolled due to defendants' intentional concealment of their negligence. More specifically, he argued the "delayed discovery rule" permitted the Joseph action to be filed within one year of January 11, 2015, the date the fraud was discovered. Mittelman admitted that the evidence of defendants' intentional concealment—the 2006 and 2009 MRI studies—had been "'hiding in plain sight'" during the Signorelli action. But he argued that the focus of the Signorelli action had been on the fifth and sixth heel surgeries and no one suspected the four plantar surgeries had not been performed until January 11, 2015. He argued he filed the Joseph action in good faith and to protect plaintiff's rights, and his act of obtaining the independent opinion of Dr. Lieu showed his good faith.
In reply, defendants pointed out that Mittelman's declaration in opposition to the sanctions motion was hearsay concerning what Dr. Ouzounian told Mittelman on January 11, 2015, and that Mittelman had adduced no declaration from Dr. Ouzounian affirming that Dr. Ouzounian first discovered, on January 11, 2015, that the plantar fascia surgeries had never been performed. Defendants also argued they had done nothing to prevent plaintiff, Dr. Ouzounian, or anyone else from reviewing the 2006 and 2009 MRI studies and the reports of those MRI studies.
Defendants adduced a letter dated May 20, 2009, from Dr. Ouzounian to the SCIF, titled "Supplemental Medical-Legal Evaluation," in which Dr. Ouzounian stated he had reviewed the 9/11/2006 "MRI scan[s]" of plaintiff's feet, together with a December 5, 2007, report to the SCIF by radiologist Dr. John G. Ellis. Regarding the 9/11/2006 MRI of plaintiff's right foot, Dr. Ellis wrote: "'There is minimally visualized surgical incisions from [plaintiff's] previous bilateral and repeat[ed] plantar fascia releases . . . .'" Other records showed that Dr. Ouzounian reviewed the 11/09/2009 MRI's no later than June 3, 2011.
Defendants argued it was "preposterous" that Dr. Signorelli "somehow concealed what was done (or not done)" during the four plantar fascia surgeries in 2005 and 2006, given that "[p]laintiff's feet were not encased in lead so that they couldn't be x-rayed or studied by MRI. In fact, the opposite is true . . . . [¶] . . . [¶] The MRI's and medical records were freely available to plaintiff, his hired experts (Dr. Ouzounian and Dr. Ross), and to his two attorneys (Mr. Summers in the workers compensation case and Mr. Mittelman in the civil cases) . . . ." C. The September 18, 2015, Order Granting the Sanctions Motion
At a September 17, 2015, hearing on the sanctions motion, Mittelman, referring to the MRI evidence, rhetorically asked: "Did they hide it from us? No. They didn't hide it from us. But it was hiding in plain sight." Mittelman assured the court he did not file the Joseph action in bad faith or with an improper purpose but only to protect plaintiff's rights. He argued any reasonable attorney would have filed the Joseph action based on information he first discovered in January 2015.
In August 2015, Mittleman withdrew as plaintiff's attorney of record in the Joseph action. At the September 17, 2015, hearing, Mittelman explained that defendants' reply had "crystalized things which led to" a breakdown of his attorney-client relationship with plaintiff and his motion to withdraw as attorney of record. Mittelman said he would not have filed the Joseph action if, in February 2015, he knew what defendants had pointed out in their reply.
The court told Mittelman he should have asked Dr. Ouzounian why the four plantar fascia surgeries were unnecessary or did not help solve plaintiff's problem, and if he had asked those questions then the alleged fraud would have been discovered much earlier. Mittleman asked the court to continue the hearing to allow him to obtain a declaration from Dr. Ouzounian "and/or Dr. Ross," because he was surprised by the evidence defendants adduced in their reply. The court said it did not believe such a declaration would be helpful, took the matter under submission, and granted the sanctions motion on September 18. D. Mittelman's Motion for Clarification (and Reconsideration) of the Sanctions Order
On October 14, 2015, Mittelman filed an ex parte motion seeking, among other things, to clarify that the sanctions order was based on section 128.7, not section 128.5, and asking the court to provide a statement of its reasons for imposing the sanctions. Mittelman pointed out that, under section 128.7, subdivision (e), the court was required to describe the conduct determined to constitute a violation of the statute and to explain the basis for the sanctions. Mittelman explained he needed this information to report the matter to the State Bar. A hearing on that motion was held on October 15.
The motion included declarations from Dr. Ouzounian and Mittleman explaining why they did not see the import of the MRI evidence until January 11, 2015, together with Dr. Ouzounian's June 2009 "qualified medical evaluation" of plaintiff, which contained no opinion about the four plantar fascia surgeries. The motion also included declarations from two attorneys who opined that Mittleman reasonably relied on Dr. Ouzounian's June 2009 qualified medical examination, which had implied that the four plantar fascia surgeries had been performed.
Defendants objected, claiming the motion amounted to an "inappropriate" (and late-filed) motion for reconsideration of the sanctions order. (§ 1008.) The court shortened time for a noticed motion for clarification and "partial relief re: sanctions," and set a hearing on October 29, 2015. Defendants filed opposition, and Mittelman filed reply papers. E. The Trial Court's Statement of Decision
Following an October 29 hearing on Mittelman's noticed motion for clarification and reconsideration, on November 2, 2015, the court issued a statement of decision, reaffirming its order imposing $3,016 in sanctions against Mittelman and explaining its reasons for imposing the sanctions. The court wrote: "Mr. Mittelman's motion for reconsideration underscores the appropriateness of sanctions pursuant to . . . section 128.7." The court noted that Dr. Ouzounian claimed in his declaration that he did not review "some 2006 MRI's" of plaintiff's feet until January 2015. But the court also noted that defendants, in their May 2015 reply to Mittelman's opposition to the sanctions motion, pointed out that Dr. Ouzounian contradicted that statement in his May 20, 2009, letter, in which he "affirmatively state[d]" that he had reviewed the 2006 MRI's. For this reason, the court called Mittelman's reliance on Dr. Ouzounian's declaration that he did not review the 2006 MRI's until January 11, 2015, "somewhat dubious."
Mittleman represents that all references in Dr. Ouzounian's declaration to "2008" MRI's are "typographical errors" and "the dates should read as September 11, 2006." The record shows the trial court was not misled and understood that Dr. Ouzounian meant 2006, not 2008. --------
The court next pointed out that "[t]he main thrust" of the Joseph action was that Dr. Joseph had defrauded plaintiff by falsely claiming to have performed the first four surgeries, and the same four surgeries (plus the two others) were at issue in the Signorelli action. The court noted Mittelman's admission that the 2006 MRI's had been "'[h]iding in plain sight'" during the Signorelli action. In sum, the court concluded, "[a] review of the motions and supporting documentation make it abundantly clear that the evidence supporting liability for Dr. Joseph has been in the possession of plaintiff and his expert since 2009. As such the claim of an exception to the [three-year limitations period of section 340.5] lacks merit."
On October 22, 2015, the court sustained defendants' demurrer to plaintiff's first amended complaint without leave to amend, and on November 6, 2015, entered a judgment of dismissal in the Joseph action. Mittelman timely appealed from the judgment and challenges the sanctions order.
III. DISCUSSION
A. Applicable Legal Principles, Overview
"Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually." (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189, italics added; Peake v. Underwood, supra, 227 Cal.App.4th at p. 440.) A claim is "factually frivolous" if "not well grounded in fact," and is "legally frivolous" if "not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) "In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable." (Bucur v. Ahmad, supra, at p. 189.) A claim is objectively unreasonable if "'any reasonable attorney would agree that [the claim] is totally and completely without merit.'" (Peake v. Underwood, supra, at p. 448, italics added.)
A section 128.7 sanctions award is reviewed for an abuse of discretion. (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 37.) The scope of the trial court's discretion "always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .'" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "'An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] This standard of review affords considerable deference to the trial court provided that the court acted in accordance with the governing rules of law . . . .' [¶] An abuse of discretion also occurs if the court applies an erroneous legal standard or its factual findings are not supported by substantial evidence." (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 110.) B. Mittelman's Claims on Appeal
Mittelman claims the trial court abused its discretion in issuing the sanctions order and the order must be reversed "for any one of four reasons." We reject each of these claims and find no abuse of discretion.
1. The Delayed Discovery Rule Did Not Apply
Mittelman first argues "the discovery rule, in fact, applied," and for that reason the Joseph action was both meritorious and timely filed within one year of January 11, 2015—the date Dr. Ouzounian and Mittelman discovered defendants' fraud in failing to disclose that the four plantar fascia surgeries had not been performed, as represented, in 2005 and 2006. Mittelman argues he cannot be sanctioned under section 128.7 for filing a meritorious and timely action.
We conclude the trial court reasonably determined the "discovery rule," or more accurately, the delayed discovery rule of section 340.5 did not apply. Accordingly, the court reasonably concluded that the filing of the Joseph action in February 2015—long after the three-year limitations period of section 340.5 had run in 2012—was objectively unreasonable because the Joseph action indisputably lacked legal merit. (Peake v. Underwood, supra, 227 Cal.App.4th at p. 440.)
In their sanctions motion, defendants claimed the Joseph action lacked legal merit because it was barred by the three-year limitations period of section 340.5. They also claimed the "discovery rule" did not apply because defendants had done nothing to prevent Dr. Ouzounian, or anyone else, from reviewing the 2006 MRI's of plaintiff's feet, at any time, including by 2009, several years before January 11, 2015.
Section 340.5 provides that an action for professional negligence against a health care provider 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." The statute further provides that "[in] no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment . . . ." (§ 340.5.)
Thus, even upon proof of fraud or intentional concealment, a professional negligence action must be brought within one year of the date the plaintiff discovers, or reasonably should have discovered, his "'injury.'" (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-900 ["regardless of extenuating circumstances, the patient must bring his suit within one year after he discovers, or should have discovered, his 'injury.'"]; Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99-100.) The term "injury" means "both a person's physical condition and its 'negligence cause.' [Citations.]" (Sanchez v. South Hoover Hospital, supra, at p. 99.) The question here is whether Mittelman should have discovered plaintiff's "injury" resulting from defendants' alleged fraudulent concealment of their failure not to perform the four plantar fascia surgeries, before January 11, 2015, and as early as 2009.
For purposes of section 340.5, the terms "fraud" and "intentional concealment" "deal with affirmative acts by the health care provider rather than mere omission . . . ." (Wallace v. Hibner (1985) 171 Cal.App.3d 1042, 1050; McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311-1312.) Thus, in order to take advantage of the delayed discovery rule of section 340.5, the plaintiff must show the defendants fraudulently or intentionally concealed the plaintiff's injury by some affirmative act.
In support of his claim that defendants fraudulently or intentionally concealed that the four plantar fascia surgeries were never performed, Mittelman points to defendants' acts, in 2005 and 2006, of "[p]utting [plaintiff] under anesthesia" and incising or cutting his feet, telling plaintiff the surgeries had been done, "[c]oncocting operative reports to conceal the truth about what was, and what was not, done" during the surgeries, billing the SCIF for the surgeries as if they had been done, and telling plaintiff his pain would go away and he would get better as a result of the surgeries.
But Mittelman does not explain why, through the use of reasonable diligence, Dr. Ouzounian, and hence Mittelman, should not reasonably have discovered defendants' alleged fraudulent or intentional concealments by May 20, 2009, the date the doctor wrote a report to the SCIF, titled "Supplemental Medical-Legal Evaluation." In that report, the doctor affirmed he had reviewed the September 11, 2006, "MRI scan[s]"of plaintiff's feet, among other medical records concerning the six foot surgeries performed by Dr. Signorelli, and concluded each of the surgeries had made plaintiff's condition "successively worse."
The crux of Mittelman's delayed discovery claim is that those 2006 MRI scans showed that the four plantar fascia surgeries were never performed. But the MRI scans were available to plaintiff's QME, Dr. Ouzounian, no later than May 2009. Thus, the evidence of defendants' alleged fraud or intentional concealment was "in plain sight" to Dr. Ouzounian no later than May 2009.
Through no affirmative act of defendants, Dr. Ouzounian and Mittelman failed to discover defendants' alleged fraud or intentional concealment of their failure to perform the four plantar fascia surgeries until January 11, 2015. Thus, the court reasonably determined that the delayed discovery rule did not apply. Accordingly, the court reasonably concluded that the Joseph action indisputably lacked merit because it was untimely filed.
Mittelman's reliance on Brown v. Bleiberg (1982) 32 Cal.3d 426 is misplaced. There, the plaintiff underwent foot surgery in 1965 to remove corns or tumors from her feet. Dr. Bleiberg, who performed the surgery, told her after the surgery that he had removed "'a whole lot of little tumors and they were going to be painful.'" (Id. at p. 430.) The plaintiff was in pain for several months following the surgery, but Dr. Blieberg assured her "'it would be all right.'" (Ibid.) The plaintiff's feet never improved, and she did not consult another physician until 1978, after she learned another person who had undergone a similar surgery had sued by Dr. Bleiberg for malpractice. (Id. at p. 431.) After consulting with a lawyer and another podiatrist, the plaintiff learned that portions of the bones of her feet had been removed during the 1965 surgery. (Ibid.)
Brown reversed a summary judgment in favor of Dr. Bleiberg after finding a triable issue of fact whether his and another doctor's "alleged affirmative concealment of the true nature of the surgery prevented [the] plaintiff from discovering that [her] injury resulted from the defendants' tortious conduct in performing [the] unnecessary operation." (Brown v. Bleiberg, supra, 32 Cal.3d at pp. 429-430.) In opposing the motion, the plaintiff affirmed she had trusted and relied on the defendants' assurances that her 1965 operation was necessary to remove tumors from her feet, and she would experience ongoing pain. (Id. at p. 433.) Brown rejected the defendants' claim that, given the plaintiff's ongoing pain, she reasonably should have known of her injury and its negligence cause long before 1978. (Id. at pp. 433-436.) Brown concluded, however, that reasonable minds could differ on this question. (Id. at p. 436.)
Brown is readily distinguishable. In contrast to this case, Brown did not involve a plaintiff with a worker's compensation claim and QME in possession of medical records which showed what happened during plaintiff's 2005 and 2006 plantar fascia surgeries. Plaintiff's QME, Dr. Ouzounian, was in possession of plaintiff's September 11, 2006, MRI scans by no later than May 20, 2009. Mittelman claims those MRI scans showed that plantar fascia surgeries were never performed. But Dr. Ouzounian should have discovered that information by May 20, 2009, long before January 2015 when he and Mittelman were preparing for trial in the Signorelli action.
Part of plaintiff's claim in the Signorelli action was that the four plantar fascia surgeries were unnecessary and worsened plaintiff's condition. Dr. Ouzounian should have discovered that the four plantar fascia surgeries had not been performed no later than May 20, 2009, when he affirmed he had reviewed the September 11, 2006, "MRI scan[s]" of plaintiff's feet. Additionally, had Mittelman asked Dr. Ouzounian why he believed the four plantar fascia surgeries had contributed to the worsening of plaintiff's condition, around the time the Signorelli action was filed in June 2010, Mittelman would have discovered the alleged fraud at that time. But by filing the Joseph action years later, in February 2015, when the Signorelli action was about to go to trial, Mittelman filed an action that was indisputably untimely and without merit. (Peake v. Underwood, supra, 227 Cal.App.4th at p. 440.)
2. The Trial Court Complied With Section 128.7, Subdivision (e)
Mittelman also claims the trial court failed to comply with section 128.7, subdivision (e) in that the court failed to "'describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.'" More specifically, Mittelman argues the trial court did not explain how he violated "the certification requirements" of section 128.7, subdivision (b)(1), (2), or (3). As we explain, the court's statement of decision, together with the extensive hearings and record in this case, make the bases of the sanctions order abundantly clear.
Section 128.7 states, in pertinent part: "(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
"(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
"(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
"(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."
In its statement of decision, the trial court plainly indicated precisely why Mittelman violated section 128.7: Mittleman filed the untimely Joseph action in February 2015, even though its late filing was not "warranted by existing law," including the late discovery rule of section 340.5. (§ 128.7, subd. (b)(2).)
As discussed, Dr. Ouzounian, with reasonable diligence, should have discovered that the four plantar fascia surgeries were not performed by no later than May 20, 2009, when he wrote the "Supplemental Medical-Legal Evaluation" affirming he had reviewed the 2006 "MRI scan[s]" of plaintiff's feet. In addition, around the time the Signorelli action was filed in June 2010, Mittelman should have asked Dr. Ouzounian why he believed the four plantar fascia surgeries had worsened plaintiff's condition. Had Mittleman done so, he would have discovered defendants' alleged fraud in failing to perform the surgeries. But by filing the Joseph action in February 2015, Mittelman certified that the claims in the Joseph action were warranted by existing law (§ 128.7, subd. (b)(2)), when in fact they were not because they were time-barred (§ 340.5). In its statement of decision and in view of its comments at the hearings on this matter, the trial court effectively found that "any reasonable attorney would agree" that the complaint in the Joseph action was "totally and completely without merit." (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 168; § 128.7, subd. (b)(2).)
3. Mittelman's Supporting Attorney Declarations Do Not Compel Reversal
Mittelman next argues that the sanctions order must be reversed because he adduced "uncontroverted declarations" from three "experienced medical malpractice litigators," attorneys Suzanne H. Mindlin, Steven J. Weinberg, and Janice F. Mulligan, that he acted reasonably in investigating the Joseph action. He argues the Weinberg and Mulligan declarations "also establish" he acted reasonably in filing the Joseph action. Plainly, however, the trial court was not required to accept the opinions of any of these experienced practitioners in ruling on the sanctions motion. For the reasons discussed, the trial court found, and the record shows, that Mittleman should have realized, in February 2015, that the Joseph action was untimely, lacked merit, and should not have been filed.
4. The Trial Court Did Not Misunderstand the Evidence
Lastly, Mittelman claims the trial court "misunderstood, misconstrued, and misapplied the undisputed documentary and testimonial evidence to support issuing sanctions." (Underlining & bolding omitted.) Again, we disagree. Contrary to Mittelman's arguments, the record shows the court did not misunderstand, misconstrue, or misapply the evidence concerning the Singorelli action, Dr. Ouzounian's declaration, or Dr. Ouzounian's May 20, 2009, report.
Regarding the Signorelli action, Mittelman claims the statement of decision shows the trial court mistakenly believed, and no evidence shows, that the four plantar fascia surgeries were at issue in the Signorelli action. Mittelman represents that the Signorelli action "had nothing to do with the first four bottom-of-the-foot surgeries" and related "only to the final two back-of-heel surgeries." (Italics omitted.) The record, however, does not contain complete transcripts of the trial in the Signorelli action. Thus, Mittelman's argument lacks support in the record.
Additionally, the record affirmatively shows that the four plantar fascia surgeries were very much in issue in the Signorelli action, along with the two surgeries to the backs of plaintiff's heels. In February 2015, Mittelman sought to amend the complaint, continue the trial, and reopen discovery in the Signorelli action in order to pursue the "newly discovered" allegation that the four plantar fascia surgeries were never performed. The court in the Signorelli action denied Mittelman's motion to amend the complaint in that action. But if trial in the Signorelli action ended up having nothing to do with the four plantar fascia surgeries, then that was either a matter of plaintiff's trial strategy and a decision to separately pursue the Joseph action, or it was a consequence of Dr. Ouzounian's failure to discover, in 2009, that the four plantar fascia surgeries had not been performed, and plaintiff's consequent failure to allege that fact when, or soon after, the complaint in the Signorelli action was filed in June 2010.
Mittelman next argues the trial court misunderstood Dr. Ouzounian's declaration when it concluded it was "'factually inconsistent'" with the doctor's May 20, 2009, "records review" in the Signorelli action. Mittelman points out that Dr. Ouzounian "unequivocally stated" in his declaration that he did not have the MRI "images" or MRI films, as opposed to MRI reports, when he conducted his records review and wrote the June 9, 2009, QME report. But as the court pointed out in its statement of decision, Dr. Ouzounian stated in his May 20, 2009, "records review" that he had reviewed the 2006 "MRI scan[s]" of plaintiff's left and right feet. The trial court pointed out that the May 20, 2009, report, not the June 9, 2009, QME, was inconsistent with Dr. Ouzounian's declaration.
Moreover, Mittelman admitted the MRI scans, images, or films were "hiding in plain sight" throughout the Signorelli action. Thus, contrary to Mittelman's claim, the trial court had a "substantial evidentiary basis" for discrediting Dr. Ouzounian's declaration that he did not have the MRI scans, images, or films when he prepared his June 9, 2009, QME.
5. No Abuse of Discretion Is Shown
Lastly, Mittelman claims the sanctions order violates the spirit and intention of section 128.7. To be sure, the statute is to be interpreted "so as [not] to conflict with the primary duty of an attorney to represent his or her client zealously. . . ." (Guillemin v. Stein, supra, 104 Cal.App.4th at pp. 167-168.) But the 21-day safe harbor provision (§ 128.7, subd. (c)(1)) was intended to make the statute remedial rather than punitive (Li v. Magestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 591). When a party or attorney does not take advantage of the safe harbor period by withdrawing the "frivolous filing," the court has broad discretion to impose sanctions under section 128.7. (Bucur v. Ahmad, supra, 244 Cal.App.4th at p. 190.)
Mittelman has not shown that the trial court abused its discretion in issuing the sanctions order. Though Mittelman argues he was "faced with an entirely new set of facts on January 11, 2015, that arguably gave rise to a new cause of action based on intentional wrongs," the trial court reasonably concluded that Mittelman should have discovered those alleged "intentional wrongs" much earlier than January 11, 2015.
IV. DISPOSITION
The judgment, including the November 2, 2016, order imposing $3,016 in monetary sanctions against Mittleman (§ 128.7, subd. (b)(2)), is affirmed. The parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.