Goodwin v. Truong CA2/3 ( 2015 )

Filed 12/29/15 Goodwin v. Truong CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
FRANK GOODWIN, B258651
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. KC062033)
v.
PATRICK B. TRUONG,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert A. Dukes, Judge. Affirmed.
Frank Goodwin, in pro. per., for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer and Lawrence D. Wong for Defendant and
Respondent.
_________________________
In this medical malpractice case, plaintiff and appellant Frank Goodwin appeals
from the judgment entered after the trial court granted defendant and respondent Patrick
Truong’s motion for summary judgment, and denied Goodwin’s motion for
reconsideration. Goodwin contends the trial court erred by denying the reconsideration
motion. We affirm.
BACKGROUND
On September 6, 2011, Goodwin filed a complaint against Dr. Anthony Oh and
San Dimas Community Hospital, alleging causes of action for professional negligence
and medical battery.1 The complaint alleged that the Hospital and Oh were negligent in
regard to treatment rendered to Goodwin for a “foreign body in colon, resulting in
various injuries and damages,” and committed medical battery by performing an
exploratory laparotomy to which Goodwin had not consented. Truong was added as a
Doe defendant on January 16, 2013.
1. Doctor Woolf’s declaration
In 2014, Truong moved for summary judgment. Goodwin, acting in propria
persona, opposed the motion. In support of his opposition, Goodwin presented the expert
declaration of Dr. Graham Woolf. Woolf’s declaration stated the following. On October
3, 2010, Goodwin visited the emergency room at San Dimas Community Hospital for
removal of a 55-millimeter soft ball that was lodged in his lower colon. The ball’s outer
covering consisted of a material similar to a balloon, and the ball was smooth, malleable,
and filled with a non-toxic liquid. Goodwin told the emergency room physician, Dr.
James Pagano, that he would like to have a gastroenterologist remove the ball with a
colonoscope. Pagano called Dr. Oh, a surgeon, to consult on removal of the ball as
suggested. Oh told Pagano that he did not perform colonoscopies. Goodwin was
admitted to the hospital by Dr. Zouhair Hakak. Late that night, Dr. Oh examined
1 Goodwin has neglected to include the complaint in the record on appeal. We take
judicial notice of the complaint in Goodwin’s related appeal in case No. B254135. (Evid.
Code, § 452, subd. (d).)
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Goodwin and suggested a rigid proctosigmoidoscopy under anesthesia to retrieve the ball.
Goodwin declined, hoping instead to pass the ball naturally with the help of a laxative he
had been given. The next morning, when the ball had not passed, Goodwin told a nurse
that he “wanted a gastroenterologist to do a colonoscopy and remove the ball.” The nurse
said she called Dr. Oh to reevaluate Goodwin for surgery. Truong, who had been
summoned for a “gastroenterology consult,” visited Goodwin that morning. Truong
“noted that Dr. Oh had already seen the patient. Dr. Truong told the patient that a doctor
would remove the ball in the afternoon. There was no note written by Dr. Truong in the
chart.” Around noon, the nurse had Goodwin sign consent forms for a rigid
proctosigmoidoscopy and possible exploratory laparotomy, but Goodwin did not read
them. That afternoon Goodwin was anesthetized and Oh performed the rigid
proctosigmoidoscopy. When Oh was unable to see the ball, he performed an exploratory
laparotomy. Unable to “milk” the ball down into the rectum, he made an incision into the
colon and removed the ball. The nurse’s notes for the following day, October 5, 2010,
reflected Goodwin’s statements that he was “ ‘upset because he did not want to be “cut
on” and thought instead they would use a probe to cut the ball up so it would pass
naturally.’ ”
On December 1, 2010, Goodwin was hospitalized at another facility for severe
abdominal pain. Doctors determined he had extensive scar tissue and adhesions, which
had caused a bowel obstruction. Goodwin remained in the hospital for nine days. The
adhesions and blockage were due to the October 4 surgery.
According to Woolf, Goodwin’s main complaint was that he told doctors Pagano
and Hakak that he wanted a colonoscopy to remove the ball, had declined Oh’s
suggestion he have surgery, and was never told he was to undergo a laparotomy to
remove the ball. Had he been told, he would have refused the surgery.
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Woolf opined that a physician should perform a careful evaluation of a patient’s
medical condition, make a diagnosis, and decide upon appropriate treatment. The ball
should have been removed via a colonoscopy. Unlike the shorter sigmoidoscope, a
colonoscope would have been able to reach and visualize the ball. Once visualized, “it
would have been simple to use a snare or a grasping forceps which could either pull the
ball out intact or could intentionally rupture the ball, allowing the liquid to drain out and
remove the ball in a deflated form.” (Boldface omitted.) Such a procedure would have
cost less and carried a much lower risk of bleeding and adhesions. Had the colonoscopy
procedure been used, both surgeries and the obstruction would have been prevented.
Dr. Woolf opined that Goodwin had told doctors Pagano, Hakak, and Oh, and the
nurse, of his wishes, which should have been followed. Although “laparotomy” had been
written on the consent form, “an acknowledgment from the patient must be given to
constitute a properly executed informed consent.”
Woolf opined as to Truong: “Dr. Truong should have conducted a
gastroenterology consult when he visited the patient in the morning of October 4, 2010.
No consult was submitted.”
2. The trial court’s ruling
On June 5, 2014, the trial court granted Dr. Truong’s summary judgment motion.
Truong’s expert’s declaration declared that Truong had complied with the standard of
care, and to a reasonable degree of medical probability, no act or omission by Truong
contributed to Goodwin’s injury.2 Truong had thus met his burden to establish that no
triable issue of fact existed. Goodwin had not met his burden to produce competent
expert opinion to the contrary. The statement that Truong could or should have
conducted a gastroenterology consult was not relevant. Criticism of, or disagreement
with, a physician’s conduct did not establish a breach of the standard of care. Goodwin
could meet his burden only by showing Truong failed to comply with the standard of care
2 Truong’s expert’s declaration has not been made a part of the record on appeal.
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in the community, and that to a reasonable degree of medical probability, his conduct was
a cause of Goodwin’s injury. Woolf, however, had not opined as to either of those issues.
3. The motion for reconsideration
On June 11, 2014, Goodwin filed a document captioned, “Notice of Plaintiff’s
Motion for Reconsideration of Order Grant[ing] Patrick Truong’s Motion for Summary
Judgment.” The document stated only that the motion for reconsideration would be heard
on August 5, 2014, and that “Plaintiff will submit memorandum [of] points and
authorities, and other supportive documents at a later time.” No documents were
attached to the motion.
On July 11, 2014, Goodwin filed the additional materials. In a short memorandum
of points and authorities, he cited the basis for the trial court’s ruling and argued: “Now,
plaintiff introduces a new edition of expert’s declaration in this motion for
reconsideration.” Goodwin pointed to a portion of Dr. Woolf’s new declaration relating
to Truong. It read: “Dr. Patrick Truong was the gastroenterologist called to consult on
the patient in the morning of October 4, 2010. To perform a consultation means to
provide a diagnosis and/or treatment. The consultant is required by CMS MM4215 to
produce a written report. In this case, Dr. Truong visited [the] patient and told the patient
that a doctor would come to remove the ball in the afternoon. Dr. Truong was asked to
consult and see the patient but did not diagnose or treat the patient and did not produce a
written report, pursuant to CMS MM4215. If Dr. Truong had performed [a] colonoscopy
with foreign body removal, then both surgeries and the small bowel obstruction would
have been prevented. Therefore, Dr. Truong acted below the standard of care and
contributed to the patient’s injury.”
On August 5, 2014, the trial court denied the motion for reconsideration. First, it
found the motion was untimely, in that it was required to have been filed within 10 days
after the service of notice of entry of the order. (Civ. Proc. Code, § 1008, subd. (a).)3
Second, a motion for reconsideration must be based on new or different facts,
3 All further undesignated statutory references are to the Code of Civil Procedure.
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circumstances, or law. (§ 1008, subd. (a).) Goodwin had failed to meet this burden. His
motion failed to raise new or different facts which could not have been offered at the
earlier hearing. Third, even if Woolf’s new declaration was considered, Woolf failed to
opine to a reasonable degree of medical probability that Truong caused Goodwin’s
injury.
On the same date, the trial court entered judgment in favor of Truong.
DISCUSSION
Goodwin states in his briefing that he is not appealing from the summary
judgment entered on June 5, 2014, which he concedes was not erroneous. Instead, he
appeals only the court’s order denying reconsideration of the motion.
Preliminarily, we note that the record on appeal is inadequate. It does not contain
the complaint, Truong’s summary judgment motion, Truong’s separate statement of
undisputed facts, his expert’s declaration, his opposition to the motion for
reconsideration, or a reporter’s transcript. Goodwin, as the plaintiff and moving party,
had the burden of providing an adequate record. (Hernandez v. California Hospital
Medical Center (2000) 78 Cal. App. 4th 498, 502.) The trial court’s order is presumed
correct (People v. JTH Tax, Inc. (2013) 212 Cal. App. 4th 1219, 1259), and the appellant
must affirmatively show error by an adequate record. (Gonzalez v. Rebollo (2014)
226 Cal. App. 4th 969, 976.) To demonstrate error, an appellant must present meaningful
legal analysis supported by citations to authority. (Lister v. Bowen (2013)
215 Cal. App. 4th 319, 337.) Goodwin’s opening brief offers almost no authority in
support of his contentions, providing only a citation to section 1005.5. Nonetheless,
because we are able, even on this limited record, to determine that the trial court’s ruling
was proper, we consider Goodwin’s appeal rather than dismissing it as Truong requests.
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1. Contentions of the parties
Goodwin attacks each basis for the trial court’s denial of the reconsideration
motion. He argues that the motion was timely. He points out that he filed the document
entitled “Notice of Plaintiff’s Motion for Reconsideration of Order Grant[ing] Patrick
Truong’s Motion for Summary Judgment” on June 11, 2014, within 10 days of the order
granting summary judgment. Section 1005.5 states, “A motion upon all the grounds
stated in the written notice thereof is deemed to have been made and to be pending before
the court for all purposes, upon the due service and filing of the notice of motion, but this
shall not deprive a party of a hearing of the motion to which he is otherwise entitled.” In
light of section 1005.5, Goodwin contends this first notice sufficed. In opposition,
Truong argues, among other things, that while the notice was served and filed within 10
days, it cited no grounds for relief, contained no supporting papers, and could not be
considered a “motion.” Citing California Rules of Court, rule 3.1112, subdivision (a),
Truong urges that a motion must consist of at least a notice of hearing, the motion itself,
and a supporting memorandum.
Goodwin also contends the motion eventually filed on July 11 raised new or
different facts, in that Dr. Woolf expanded upon his opinion and added that Truong acted
below the standard of care and contributed to Goodwin’s injury. Truong counters that the
“new edition” of Woolf’s declaration does not describe any new fact, circumstances, or
law discovered after the June 5, 2014, summary judgment hearing.
Finally, Goodwin urges that the new edition of Woolf’s declaration was sufficient
to establish Truong caused Goodwin’s injury and acted below the standard of care.
Truong argues that even if considered, Woolf’s new declaration remains deficient to
establish causation.
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2. Goodwin has failed to demonstrate that the trial court’s ruling was an abuse of
discretion.
Section 1008 provides that parties who wish to move for reconsideration of an
order must do so within 10 days after service of notice of entry of the order, and the
request must be based upon new or different facts, circumstances, or law. (Case v.
Lazben Financial Co. (2002) 99 Cal. App. 4th 172, 179.) Code of Civil Procedure section
1008 provides in pertinent part: “(a) When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or granted conditionally,
or on terms, any party affected by the order may, within 10 days after service upon the
party of written notice of entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or court that made the order, to
reconsider the matter and modify, amend, or revoke the prior order. The party making
the application shall state by affidavit what application was made before, when and to
what judge, what order or decisions were made, and what new or different facts,
circumstances, or law are claimed to be shown.” A trial court’s ruling on a motion for
reconsideration is reviewed under the abuse of discretion standard. (New York Times Co.
v. Superior Court (2005) 135 Cal. App. 4th 206, 212.)
“Section 1008, subdivision (a) requires that a motion for reconsideration be based
on new or different facts, circumstances, or law. A party seeking reconsideration also
must provide a satisfactory explanation for the failure to produce the evidence at an
earlier time.” (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at p. 212;
Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015)
61 Cal. 4th 830, 839; California Correctional Peace Officers Assn. v. Virga (2010)
181 Cal. App. 4th 30, 46, fn. 15; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 689-690.)
Goodwin’s motion failed to meet these requirements. First, the trial court
correctly concluded the motion was untimely. The notice filed on June 11, 2014, did not
comply with section 1008. Goodwin did not state, by affidavit or otherwise, in the
June 11, 2014, document, what new or different facts, circumstances, or law existed to
support the motion. He offers no authority suggesting that Code of Civil Procedure
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section 1005.5, the only authority cited in support of his argument, overrides the
requisites of section 1008. The argument, raised for the first time in his reply brief, that
the trial court improperly confused the words “made” with “filed,” is not persuasive.
Second, even if considered timely, Goodwin’s motion did not set forth any new or
different facts, circumstances, or law. It simply supplemented Dr. Woolf’s opinion based
on facts and circumstances already well known to the parties. The edits to the “new
edition” do not constitute new and different facts as that term is used in section 1008.
(See Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC, supra,
61 Cal.4th at p. 836, fn. 3 [“to permit a party to satisfy section 1008’s requirement of
showing ‘ “new or different” facts’ simply by offering ‘anything not previously
“presented” to the court’ would have ‘[t]he miserable result . . . [of] defeat[ing] the
Legislature’s stated goal of reducing the number of reconsideration motions and would
remove an important incentive for parties to efficiently [marshal] their evidence’ ”];
Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 690 [requirements of section 1008 not
met where the additional information consisted of the plaintiff’s own declared
knowledge, and was always in his possession]; California Correctional Peace Officers
Assn. v. Virga, supra, 181 Cal.App.4th at pp. 46-47, fn. 15; Morris v. AGFA Corp. (2006)
144 Cal. App. 4th 1452, 1468 [physician’s declaration was “improper for reconsideration
because it could have been presented with the original motion”].)
Moreover, Goodwin’s explanation of why the revised declaration was not
provided at the time he opposed the summary judgment motion is lacking. Goodwin
explains in his reply brief that he “verbally explained” to the trial court why the
information had not been provided earlier: “ ‘I apologized to Judge Dukes that because
Dr. Woolf and I lacked legal experiences and did not know what should have been
written in the declaration, and we only learned that our first declaration was defect[ive]
from reading [the] court’s order, so we wrote a new declaration and cured the defects. I
requested [the] court to excuse me from this negligence.’ ” Assuming arguendo, in the
absence of a reporter’s transcript, that Goodwin verbally provided this explanation to the
court below, it was insufficient. Goodwin offers no authority for the proposition that his
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mere ignorance of the law is a satisfactory explanation. (See Garcia v. Hejmadi, supra,
58 Cal.App.4th at pp. 687, 690 [plaintiff’s explanation that information had been omitted
due to oversight was not a satisfactory explanation].)
Finally, we reject Goodwin’s argument that the new edition of Woolf’s declaration
was sufficient to establish Truong caused Goodwin’s injury and acted below the standard
of care. The record on appeal is insufficient to support this contention. As noted, the
trial court’s order is presumed correct and the appellant must affirmatively show error by
an adequate record. (Gonzalez v. Rebollo, supra, 226 Cal.App.4th at p. 976; People v.
JTH Tax, Inc., supra, 212 Cal.App.4th at p. 1259.) The record before us omits Truong’s
summary judgment motion and supporting documents, as well as the declaration of
Truong’s expert. The absence of these materials precludes meaningful consideration of
this contention.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to cost.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
JONES, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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