Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC323127, William Highberger, Judge. Affirmed.
Law Offices of Mifflin & Associates and Ken Mifflin for Plaintiff and Appellant.
Thever & Associates and Ronald A. Chavez; Pollak, Vida & Fisher and Daniel P. Barer for Defendant and Respondent.
PERLUSS, P. J.
The trial court granted nonsuit in favor of the County of Los Angeles (County) in this medical malpractice action after Kamau Sanders proposed he be allowed to proceed to trial without an expert witness. On appeal Sanders contends the trial court abused its discretion in denying his request to augment his witness list to include a new medical expert and erred in granting the County’s motion for nonsuit and its request for attorney fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Sanders’s Injury and Treatment; the Complaint
Because this matter comes to us on appeal from a judgment of nonsuit, we recite the factual background based on the statement of the case submitted by Sanders, as read by the trial court at the hearing preceding its granting of the County’s motion, and presume those facts, as expanded by Sanders’s counsel at the hearing, could be proved. (See Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291; Stein-Brief Group, Inc. v. Home Indemnity Co. (1998) 65 Cal.App.4th 364, 369; Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1232, fn. 1; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 664 [“we accept as true the facts stated in appellants’ trial court briefs and arguments”].)
Sanders broke his left leg after he fell off his bicycle on July 20, 2002. The leg was placed in a cast by Los Angeles County + USC Medical Center personnel. Two or three days later Sanders returned to the hospital, complaining the cast was too tight, but hospital staff refused to treat him because he “was not in the computer.” Sanders’s cast was removed two days later at a different hospital, and Sanders had blisters and sores on his left leg. Sanders claimed the tight cast also caused osteomyelitis, a deep infection involving the bone, requiring several skin graft operations.
On July 21, 2003 Sanders filed a personal injury action for medical malpractice against the County seeking $25,000 in damages.
The County, which operates Los Angeles County + USC Medical Center, was erroneously sued as “USC Medical Center.”
2. Sanders’s Expert’s Withdrawal; Sanders’s Belated Attempt To Augment His Expert Witness List
On November 28, 2005 the parties exchanged expert witness lists. Sanders’s only designated expert witness was Dr. William Simpson, an orthopedist. On March 6, 2006, the second date on which Dr. Simpson’s deposition had been noticed by the County, Dr. Simpson informed Sanders’s counsel his professional liability carrier had advised him his insurance policy precluded his participation as an expert in medical malpractice litigation. However, when the County called to confirm the deposition scheduled for later that afternoon, Sanders’s counsel simply cancelled it, stating he had not yet contacted Dr. Simpson. That same day the County sent Sanders a letter informing him it would seek to preclude Dr. Simpson from testifying if he was not made available for deposition the following week. Sanders apparently did not respond to that letter.
Dr. Simpson’s deposition had been initially noticed for December 15, 2005. On December 14, 2005 Sanders’s counsel cancelled the deposition, stating he had not had an opportunity to speak with Dr. Simpson about his availability. After Sanders’s counsel failed to contact the County with available dates, notwithstanding his assurance he would do so, the County noticed Dr. Simpson’s deposition for March 6, 2006.
On March 27, 2006 Sanders sought the County’s agreement he could augment his expert witness list to designate a new medical expert, claiming Dr. Simpson had had problems with the medical board. Because the County would not consent, Sanders gave notice he intended to move ex parte for leave to augment his expert witness list on March 31, 2006. March 31, 2006, however, was a court holiday (César Chávez Day), and the ex parte hearing did not proceed.
On April 19, 2006 Sanders notified the County he intended to proceed ex parte on April 21, 2006 to obtain leave to augment his expert witness list. Sanders, who wanted the trial judge to hear the motion, chose not to proceed on that date after learning his courtroom would be dark. Sanders re-noticed the hearing for April 25, 2006. Trial was set to begin on May 2, 2006.
On April 25, 2006 the trial court denied Sanders’s motion to augment his expert witness list on the ground he had failed to demonstrate exceptional circumstances justifying the belated request: Sanders had waited nearly two months since he learned his expert would not testify and one month since the County had refused to stipulate Sanders could augment his expert witness list before seeking court approval. At Sanders’s request, the trial date was continued to May 8, 2006 to permit him to file a writ petition challenging the court’s ruling, but no petition was filed.
3. The Trial Court’s Grant of Nonsuit in Favor of the County
On May 8, 2006, the day of trial, the County moved for an order requiring Sanders to offer proof on the issues of standard of care and causation before impaneling a jury pursuant to Evidence Code section 402 in light of the fact Sanders did not have an expert witness. During the hearing Sanders argued, “I think that a layperson can testify that he felt that the cast was too tight. It was too tight and that he complained and that the County did nothing about it.” The court concluded Sanders needed an expert witness and granted nonsuit in favor of the County.
4. The County’s Award of Attorney Fees
On May 12, 2006, before judgment was entered, the County filed a memorandum of costs and a motion for attorney fees pursuant to Code of Civil Procedure section 1038. The County argued it was entitled to $12,612, for attorney fees incurred since March 27, 2006, the date the County declined to stipulate Sanders could augment his expert witness list or, alternatively, $7,125 for fees incurred since April 25, 2006, the date the court denied Sanders’s motion to augment his expert witness list. On July 27, 2006, after two hearings and supplemental briefing, the court awarded the County $7,125 for attorney fees incurred since April 25, 2006. The court ordered Sanders and his attorney, jointly and severally, to pay the attorney fee award.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying Sanders’s Motion To Augment His Expert Witness List
Code of Civil Procedure section 2034.610, subdivision (b), provides the trial court may grant leave to augment a party’s expert witness list after the deadline for deposing experts has passed only under “exceptional circumstances.” “The decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion.” (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476; see Bonds v. Roy (1999) 20 Cal.4th 140, 149 [abuse of discretion standard applied when determining whether court erred in denying implicit motion to amend expert witness declaration].)
The deadline for completing expert witness depositions is the 15th day before the date initially set for trial. (Code of Civ. Proc., § 2024.030.)
Although conceding his counsel may have been remiss for not acting more quickly, Sanders argues his delay is not a sufficient reason to deny him his day in court. To the contrary, under the circumstances presented here, the court was fully justified in denying the delinquent request to replace his medical expert. The case had been pending for almost three years. The County attempted to notice Dr. Simpson’s deposition within three weeks of his designation, but Sanders repeatedly failed to communicate with Dr. Simpson regarding his availability despite assurances he would. Had he done so, it is likely Dr. Simpson would have earlier discovered his inability to serve as an expert, providing Sanders with sufficient time to identify a new expert. Compounding this delay -- occurring when the pace of litigation was rapidly accelerating toward trial -- Sanders failed to disclose Dr. Simpson had withdrawn on March 6, 2006 when the County sought to confirm his deposition would proceed that day and waited three weeks before informing the County and seeking a stipulation to augment his expert witness list. Sanders then waited another month after the County refused to stipulate before seeking leave from the court.
Sanders’s excuses made to the trial court for the belated ex parte filing -- that he had initially noticed the ex parte hearing for a court holiday and subsequently noticed it for a day the judge’s courtroom was dark -- are indefensible. Putting aside counsel are charged with knowledge of court holidays, Sanders waited more than two weeks after he learned March 31, 2006 was a court holiday before giving notice he would proceed ex parte on April 21, 2006. Moreover, as the trial court explained, implicit in the designation of an expert is a representation the expert is willing and able to testify: “If Dr. Simpson didn’t give a hoot to check his malpractice insurance at the time, bring your claim against Dr. Simpson in due course.” Under these circumstances we certainly cannot say the trial court’s denial of Sanders’s motion on the ground he had failed to demonstrate “exceptional circumstances” justifying the untimely filing “exceed[ed] the bounds of reason.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
2. The Trial Court Properly Granted Nonsuit in Favor of the County
“The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983.) “‘Ordinarily, the standard of care required of a doctor, and whether he [or she] exercised such care, can be established only by the testimony of experts in the field.’” (Gannon v. Elliott (1993) 19 Cal.App.4th 1, 6; Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Expert witness testimony is also required to show the defendant’s breach of the standard of care was the cause, within a reasonable medical probability, of the patient’s injury. (E.g., Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 [law is well-settled that causation in a personal injury action must be proved “‘within a reasonable medical probability based upon competent expert testimony’”]; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.)
An exception to the expert testimony requirement exists when “‘“the conduct required by the particular circumstances is within the common knowledge of the layman.”’” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Similarly, causation may be shown without expert testimony if “such result was a matter of common knowledge.” (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279.) “The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’ [Citations.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.] Otherwise, ‘“expert evidence is conclusive and cannot be disregarded.”’” (Flowers, at p. 1001, fn. omitted; see also Gannon v. Elliot, supra, 19 Cal.App.4th p. 6 [“‘Res ipsa loquitur applies where the occurrence of an injury is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that defendant probably is the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both expert testimony and common knowledge’”].)
The doctrine of res ipsa loquitur creates a presumption affecting the burden of producing evidence. (Evid. Code, § 646, subd. (a).) “The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant . . . .’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826.)
On appeal Sanders, without any real argument, recites some of the basic legal principles regarding the doctrine of res ipsa loquitur and contends “his injuries, at least in part, could be proven by resort to the common knowledge of the jury.” It is not enough, however, to merely assert the doctrine applies. “At trial, before the burden-shifting presumption arises, the plaintiff must present some substantial evidence of three conditions: (1) the injury must be the kind which ordinarily does not occur in the absence of someone’s negligence; (2) the injury was caused by an instrumentality in the exclusive control of the defendant; and (3) the injury was not due to any voluntary action or contribution on the part of the plaintiff.” (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316-317.) At the hearing preceding entry of nonsuit, Sanders did not mention res ipsa loquitur, let alone identify any evidentiary basis for its application in this case. Similarly, on appeal Sanders has not pointed to any allegation or evidence in the record satisfying the conditions that justify application of the doctrine. (Cf. Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [“it is counsel’s duty to point out portions of the record that support the position taken on appeal”; “[t]he appellate court is not required to search the record on its own seeking error”].) Thus, the doctrine may not be invoked as justification for application of the common knowledge exception.
While the common knowledge exception may on occasion be applied in cases even when the res ipsa loquitur doctrine is not triggered (see Gin Non Louie v. Chinese Hospital Assn. (1967) 249 Cal.App.2d 774, 786-787 [“question is not one of the application of the doctrine of res ipsa loquitur . . . . It is a question of whether the conduct revealed by the evidence reveals a negligent act or omission, and whether that conduct can be evaluated by the jury without the assistance of expert testimony”]), this is not one of those cases. Sanders’s reliance on Norden v. Hartman (1955) 134 Cal.App.2d 333 (Norden II) in this regard is drastically misplaced. The parties had previously admitted res ipsa loquitur did not apply to the plaintiff’s complaint his too-tight cast led to the amputation of his foot. (Norden v. Hartman (1952) 111 Cal.App.2d 751, 759 (Norden I).) Nonetheless, the jury returned a verdict for the plaintiff, and the trial court denied the defendant’s motion for a new trial, which asserted the evidence of defendant’s negligence in applying and maintaining the cast was insufficient. Affirming the denial of the new trial motion, the Court of Appeal acknowledged -- as Sanders insists -- a layperson can testify he felt his cast was too tight, but also explained expert testimony was needed to determine the standard of care and causation: “While such questions as whether a cast should have been used, and as to the effect of a too-tight cast, were exclusively within the knowledge of experts, the question as to whether this particular cast was too tight was not and could not be exclusively within their knowledge, as experts.” (Norden II, at p. 338.) Similarly, in the case at bar, although Sanders may have properly testified the cast felt too tight two days after it was put on, expert testimony was nevertheless required to establish the appropriate standard of care in the application of the cast, whether the treating physician’s conduct fell below the standard of care and, if so, whether the too-tight cast and not some other factor -- perhaps including Sanders’s own conduct in failing to heed proper post-treatment restrictions -- caused his injuries. Those were not matters within the common knowledge of lay people.
Sanders also argued in the trial court expert testimony was not required to demonstrate the hospital “had an obligation and duty to see [Sanders], to check the cast” and “[i]t’s just negligence in the way they responded to his complaint about the cast being too tight.” The hospital’s purported negligence in providing after-care, however, was not the basis of Sanders’s lawsuit. His complaint alleged solely: “The defendants so negligently treated plaintiff’s left ankle, leg and foot and improperly placed a cast which caused severe injuries to the left foot, requiring surgery.” Moreover, as the trial court aptly noted, “But if you concede that fact or that element, which is that they didn’t care for him at a time they should have cared for him, you still have to show damages flowing from it. And so if the cast was not too tight below the standard of care when it went on, the failure of the follow-up visit isn’t problematic. And even if it was, for whatever reason, assumed to be too tight, the damages that flow from a period of a too tight cast doesn’t necessarily follow without an expert.”
3. The Trial Court’s Award of Attorney Fees to the County Was Proper
Code of Civil Procedure section 1038 (section 1038) permits public entities to recover the costs of defending unmeritorious or frivolous civil actions brought under the Government Claims Act (also known as the Tort Claims Act) after prevailing on a dispositive motion, including a nonsuit, if the court determines the proceeding was not brought or maintained “with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law . . . .” (§ 1038, subd. (a); Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853 & fn. 1, 856; Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 931 [“[s]ection 1038 applies not only to initiation of an action but also to steps to pursue it after it has been filed”].) Defendants may recover under section 1038 “if the trial court finds the plaintiffs lacked either reasonable cause or good faith in filing the lawsuit” or maintaining it. (Kobzoff, at p. 853.)
The County is a public entity within the meaning of the Government Claims Act. (Gov. Code, § 811.2; Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, supra, 19 Cal.4th at p. 854, fn. 3.)
Sanders is simply incorrect in arguing the County’s notice of appeal, filed before the trial court ruled on the County’s motion for attorney fees, divested the court of jurisdiction to determine an award of attorney fees under Code of Civil Procedure section 916, subd (a). (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360 [“trial court properly concluded it had jurisdiction to proceed because the trial court ‘retains jurisdiction to entertain a motion for attorney fees despite an appeal’”].)
“‘Reasonable cause’ is an objective standard which asks whether any reasonable attorney would have thought the claim tenable.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 888; Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, supra, 19 Cal.4th at p. 857 [“‘[r]easonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action’”].) We review the trial court’s determination the plaintiff did not have reasonable cause to file or pursue a lawsuit de novo. (Knight v. City of Capitola, supra, 4 Cal.App.4th at p. 932.)
As we have explained, Norden II, supra, 134 Cal.App.2d 333 -- the sole basis upon which Sanders maintained he could pursue his action notwithstanding his lack of an expert witness -- expressly contradicts his contention he did not need a medical expert to establish the standard of care and causation. Any reasonable attorney reading Norden II would have understood Sanders’s claim was not tenable. The award of attorney fees against Sanders and his attorney was proper.
Sanders has forfeited his argument the County’s cost memorandum includes items that pre-date April 25, 2006. It does not appear Sanders raised the argument in the trial court (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [issues not raised in trial court cannot be raised for first time on appeal]); and, even if he did, his failure to provide this court with a transcript of the hearing at which costs were determined prevents us from considering whether the trial court abused its discretion in awarding costs (see Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [Court of Appeal could not determine whether trial court abused its discretion in awarding attorney fees because record was inadequate]).
DISPOSITION
The judgment is affirmed. The County is to recover its costs on appeal.
We concur: WOODS, J., ZELON, J.