Harsini v. Lamm CA2/3

Filed 5/12/22 Harsini v. Lamm 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
MIKE HARSINI, B313547
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV20393)
MIKI LAMM et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Mike Harsini, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre,
Daniel R. Velladao, Kathleen M. Walker and Jeffrey S. Healey for
Defendants and Respondents.
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Mike Harsini sued Belmont Village (Belmont) and Miki
Lamm (collectively, defendants) for the wrongful death of his
mother. Defendants filed a motion for summary judgment, and
the trial court granted the motion. We conclude that Mike
Harsini has forfeited his contentions by failing to provide a
coherent statement of facts, failing to provide an adequate record,
failing to cite to the record, and failing to articulate any pertinent
or intelligible legal argument. Therefore, we affirm the
judgment.
BACKGROUND
In October 2017, Masomeh Harsini1 moved into Belmont, a
senior living facility. Masomeh was then 83 years old and
suffering from dementia. On September 8, 2019, Masomeh
passed away at the age of 84. Her certificate of death stated that
the causes of death were congestive heart failure exacerbation,
hypertension, and Alzheimer’s dementia.
Following Masomeh’s death, Mike brought an action
against Belmont and Lamm, the executive director of Belmont,
alleging elder abuse, violation of the Patient’s Bill of Rights,
negligence, and wrongful death. Among other things, Mike
alleged that, throughout Masomeh’s stay at Belmont, he and
other family members had voiced complaints about the lack of
care and decline of Masomeh’s condition. He further alleged that
defendants were aware of the substandard level of medical care
provided to residents in their facilities but negligently and
consciously disregarded these issues, and therefore directly
caused Masomeh’s death. The trial court sustained a demurrer
1 We refer to Mike Harsini and Masomeh Harsini by their
first names for the sake of clarity; we intend no disrespect.
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as to all counts, but gave Mike leave to amend his causes of
action for elder abuse and wrongful death.
On November 6, 2020, Mike filed the operative third
amended complaint.2 The trial court overruled defendants’
demurrer and denied their motion to strike as to this complaint,
but ordered that the wrongful death claim was the sole remaining
cause of action.
On March 29, 2021, defendants moved for summary
judgment on the wrongful death claim on the grounds that:
(1) they had met the standard of care in the community for
providing services to Masomeh; (2) the complaint failed to
properly plead a cause of action for wrongful death;
(3) defendants’ conduct had not caused or contributed to
Masomeh’s death; and (4) Mike had admitted that the defendants
were not negligent, as all of defendants’ requests for admission
issued to Mike had been deemed admitted by the trial court.
In support of their motion, defendants filed the declaration
of Karen L. Josephson, M.D. Dr. Josephson, a board certified
physician in internal and geriatric medicine, opined that Belmont
and Lamm had properly assessed Masomeh, implemented
appropriate care plans, and followed physicians’ orders based on
her review of Masomeh’s medical records. Additionally, based on
the records and her training and experience, Dr. Josephson
stated that it was her professional opinion that the care provided
to Masomeh met the standard of care in the community for
evaluating, assessing and treating residents in a facility like
2 The record indicates that Mike was initially represented
by counsel in the trial court, but took over his own representation
at some point prior to filing the operative complaint.
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Belmont, and that no act or omission of the staff caused or
contributed to Masomeh’s injury or death. Dr. Josephson noted
that Masomeh had an extensive medical history and
comorbidities, including dementia and severe heart problems,
and that her death was the result of the natural progression of
her disease and comorbidities.
On April 14, 2021, Mike filed an “EX-PARTE NOTICE FOR
HEARING ON DEMURRER WITH-MOTION TO STRIKE THE
DEFENDANTS’ REQUEST FOR SUMMARY JUDGMENT AND
THE NOTICE-OF-LODGMENT,” which the trial court denied the
following day. On May 20, 2021, Mike filed a “Notice of Motion
And Motion on Demurrer with Motion to Strike the Defendants’s
request for Summary Judgment And Notice-of-Lodgment” (the
May 20 filing). Though not framed as an opposition to the motion
for summary judgment, the May 20 filing addressed the
declaration of Dr. Josephson and certain arguments raised in the
motion for summary judgment in this motion. It did not,
however, include a separate statement in opposition or signed
expert declaration to controvert that of Dr. Josephson. The
purported declaration of Mostafa Rahimi, M.D., attached to the
May 20 filing, is actually a letter describing certain conversations
Mike had with Dr. Rahimi, who apparently declined to provide a
declaration in the absence of a subpoena.
On June 18, 2021, the trial court heard oral argument from
the parties and granted summary judgment in favor of
defendants. The trial court found that summary judgment was
appropriate on the grounds that Mike failed to file an opposition
to the motion for summary judgment; failed to provide any expert
testimony controverting Dr. Josephson’s declaration that
defendants did not breach the standard of care; and failed to
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respond to defendants’ requests for admission, which had been
deemed admitted, and which included admissions that Mike had
no evidence that defendants breached the applicable standard of
care.
Mike timely appeals.
DISCUSSION
Mike contends the court erred in granting summary
judgment, though the legal basis for this assertion is not entirely
clear to the court. We conclude that Mike has forfeited any claim
of error.
We are mindful that Mike is representing himself on
appeal. A self-represented litigant is not entitled to “special
treatment” (Stebley v. Litton Loan Servicing, LLP (2011)
202 Cal.App.4th 522, 524), but is held to the same standards as a
party represented by counsel (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1247). On appeal, the judgment or order
challenged is presumed to be correct. (Singman v. IMDB.com,
Inc. (2021) 72 Cal.App.5th 1150, 1151.) “ ‘All intendments and
presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown.’ ”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An
“appellant must present argument and authorities on each point
to which error is asserted or else the issue is waived.” (Kurinij v.
Hanna & Morton (1997) 55 Cal.App.4th 853, 867; Cal. Rules of
Court, rule 8.204(a)(1)(B).) Matters not properly raised or that
lack adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
An affirmative showing also requires an adequate appellate
record and citations to the record. (Randall v. Mousseau (2016)
2 Cal.App.5th 929, 935; Cal. Rules of Court, rules 8.124(b),
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8.204(a)(1)(C).) “ ‘ “The reviewing court is not required to make
an independent, unassisted study of the record in search of error
or grounds to support the judgment.” [Citations.] It is the duty
of counsel to refer the reviewing court to the portion of the record
which supports appellant’s contentions on appeal. [Citation.] If
no citation “is furnished on a particular point, the court may treat
it as waived.” ’ ” (Lonely Maiden Productions, LLC v. GoldenTree
Asset Management, LP (2011) 201 Cal.App.4th 368, 384.) These
principles apply to the appeal of any judgment, including a
review of a summary judgment. (Abdulkadhim v. Wu (2020)
53 Cal.App.5th 298, 301.)
Mike has not met his burden on appeal. Mike fails to
reasonably assist this court in our understanding of the facts or
analysis of the issues he raises in this appeal. Mike’s four-page
opening brief misstates the sole cause of action at issue as
defamation of character, and neither his opening brief nor his
two-page reply brief contains a coherent statement of facts,
citation to relevant legal authority, or a cogent explanation of
how he was prejudiced by the summary judgment order.3
The only factual contention in Mike’s opening brief that
directly addresses the trial court’s order is that Mike timely filed
an opposition to the defendants’ motion for summary judgment
on June 4, 2021, contrary to what the trial court stated.
However, Mike provides no citation to the appellate record in
3 Both, however, are replete with ad hominem attacks on
the trial court judge, counsel for defendants, and defendants’
expert. While we are cognizant of the personal nature of this
case for Mike, and we understand that he is grieving the loss of
his beloved mother, such attacks have no place in an appellate
brief and constitute potentially sanctionable behavior.
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support of this claim or any other, as required by California Rules
of Court, rule 8.204(a)(1)(C), and no opposition of that date is
reflected in the index of Mike’s appendix. Mike’s failure to
include his opposition brief in the record renders any meaningful
review of the issues on appeal impossible and precludes him from
meeting his appellate burden. (See Dawson v. Toledano (2003)
109 Cal.App.4th 387, 402 [defendant who did not provide copy of
summary judgment motion or opposition papers failed to supply
adequate appellate record].)
Even if we look to the May 20 filing, which appears to have
been also intended as an opposition to the motion for summary
judgment, Mike failed to comply with the requirements set forth
in California Rules of Court, rule 3.1350(e). In particular, Mike
failed to file a separate statement responding to each of the
material facts contended by defendants (Cal. Rules of Court,
rule 3.1350(e)(2); Code Civ. Proc., § 437c, subd. (b)(3)), which
“alone is a sufficient ground to uphold the trial court’s grant of
the motion” (Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175,
179).
In light of Mike’s material noncompliance with rules of
practice and procedure at both the appellate and trial court level,
we conclude that Mike has forfeited any claim that the court
erred in granting defendants’ motion for summary judgment.
(See Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 867;
Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP, supra, 201 Cal.App.4th at p. 384.)
We are also satisfied, based upon our review of the limited
record before us, that Mike would not prevail on the merits even
if we were to reach them. “ ‘ “The elements of the cause of action
for wrongful death are the tort (negligence or other wrongful act),
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the resulting death, and the damages, consisting of the pecuniary
loss suffered by the heirs.” ’ ” (Lattimore v. Dickey (2015)
239 Cal.App.4th 959, 968.) Mike has alleged that the tort that
resulted in his mother’s wrongful death was defendants’
professional negligence with respect to Masomeh’s medical care,
i.e., medical malpractice. “ ‘The elements of a cause of action for
medical malpractice are: (1) a duty to use such skill, prudence,
and diligence as other members of the profession commonly
possess and exercise; (2) a breach of the duty; (3) a proximate
causal connection between the negligent conduct and the injury;
and (4) resulting loss or damage.’ ” (Ibid.) “The first element,
standard of care, is the key issue in a malpractice action and can
only be proved by expert testimony, unless the circumstances are
such that the required conduct is within the layperson’s common
knowledge.” (Ibid.) “ ‘ “When a defendant moves for summary
judgment and supports his motion with expert declarations that
his conduct fell within the community standard of care, he is
entitled to summary judgment unless the plaintiff comes forward
with conflicting expert evidence.” ’ ” (Hanson v. Grode (1999)
76 Cal.App.4th 601, 607.)
Here, based on her extensive experience in geriatric
medicine, Dr. Josephson opined that the care provided to
Masomeh met the standard of care in the community, that no act
or omission of Lamm or the Belmont staff caused or contributed
to Masomeh’s injury or death, and that Masomeh’s death was the
result of the natural progression of her disease and comorbidities.
This satisfied defendants’ burden to make a prima facie showing
that their conduct fell within the community standard of care.
The burden therefore shifted to Mike to controvert
Dr. Josephson’s opinion.
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Mike did not carry this burden. As discussed, to the extent
that Mike filed an opposition to the summary judgment motion
on June 4, 2021, we are unable to consider it as it is not part of
the appellate record. Although the May 20 filing contains a
purported declaration of Dr. Rahimi, it is not a signed declaration
from Dr. Rahimi, but merely a description of Mike’s
conversations with Dr. Rahimi. Even if these statements were
admissible, they do not reflect Dr. Rahimi’s view as to whether
the community standard of care was met by defendants. The
trial court therefore properly granted defendants’ motion for
summary judgment. (See Fernandez v. Alexander (2019)
31 Cal.App.5th 770, 782 [summary judgment properly granted
where “plaintiff presented no admissible evidence to controvert”
defendant’s expert declaration]; Jambazian v. Borden (1994)
25 Cal.App.4th 836, 844 [“absence of opinion evidence” from
plaintiff regarding standard of care “was fatal to his cause of
action”].)
Thus, Mike’s appeal is both procedurally and substantively
defective.
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DISPOSITION
The judgment is affirmed. Belmont Village and Miki
Lamm are awarded their costs on appeal.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
EDMON, P. J.
EGERTON, 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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