Shannon-Yeganhe v. Cedars-Sinai Med. Ctr.

• Decision Date: 12 April 2018
• Docket Number: B266199
• Parties: JENNIFER L. SHANNON-YEGANHE, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

JENNIFER L. SHANNON-YEGANHE, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.

B266199

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

April 12, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC518996)

APPEAL from judgments of the Superior Court of Los Angeles County, Kevin Brazile and Dalila C. Lyons, Judges. Affirmed in part, reversed in part.

Morris S. Getzels Law Office and Morris S. Getzels for Plaintiff and Appellant.

LaFollette, Johnson, DeHaas, Fesler & Ames, Louis H. De Haas and Rebecca Handlin for Defendant and Respondent Eli Baron.

Moore McLennan, Raymond R. Moore and Arthur E. Zitsow for Defendant and Respondent Alen Ternian.

Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson for Defendants and Respondents Eli Baron and Alen Ternian.

Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, Kristi K. Hedrick and John J. Weber for Defendant and Respondent Cedars-Sinai Medical Center.

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INTRODUCTION

In this medical malpractice action, Jennifer Shannon-Yeganhe appeals from the judgments entered after the trial court granted motions for summary judgment filed by Dr. Alen Ternian, Dr. Eli Baron, and Cedars-Sinai Medical Center. Shannon-Yeganhe contends the trial court erred in denying her motion to set aside the orders granting the doctors' motions for summary judgment, which she brought on the ground her counsel had abandoned her. She also contends the trial court erred in granting Cedars-Sinai's motion for summary judgment because there were triable issues of material fact on the elements of her cause of action and on Cedars-Sinai's statute of limitations defense.

We conclude the trial court did not abuse its discretion in denying Shannon-Yeganhe's motion to set aside the orders granting the doctors' motions for summary judgment, but the court erred in granting Cedars-Sinai's motion for summary judgment. Therefore, we affirm the judgments in favor of Ternian and Baron and reverse the judgment in favor of Cedars-Sinai.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Trial Court Grants the Motions by Ternian and Baron for Summary Judgment

Shannon-Yeganhe filed this action on August 21, 2013, asserting one cause of action for medical malpractice against Cedars-Sinai, Ternian, an anesthesiologist, and Baron, a surgeon. Shannon-Yeganhe alleged the defendants failed to provide proper medical care when, while undergoing surgery at Cedars-Sinai on April 11, 2011, she "went into anaphylactic shock from a reaction to [A]ncef [an antibiotic] that resulted in anoxic brain injury secondary to intraoperative hypotension."¹ In her first amended complaint she alleged she became aware of her injury and its cause on August 22, 2012.

Shannon-Yeganhe was represented by counsel when she filed her complaint and her first amended complaint. On February 24, 2014, however, she filed a substitution of attorney stating she now represented herself.

On March 24, 2014 Ternian filed a motion for summary judgment, contending his care of Shannon-Yeganhe was within the standard of care, he did not cause or contribute to her alleged injuries, and the statute of limitations barred her claims. Ternian submitted a declaration from Dr. Paul Yost, a board-certified anesthesiologist, in support of the first two contentions. In support of his third contention, Ternian cited Shannon-Yeganhe's deposition testimony that, on the day after her April 11, 2011 surgery, Baron and others at Cedars-Sinai told her that during the surgery she went into anaphylactic shock because of an allergic reaction to Ancef and that she should avoid Ancef in the future. Ternian argued Shannon-Yeganhe was therefore "on inquiry notice" of her alleged injury by April 12, 2011, which meant the applicable one-year statute of limitations expired before she filed her complaint. Ternian set the hearing on his motion for June 10, 2014.

Instead of filing an opposition to the motion for summary judgment, Shannon-Yeganhe appeared ex parte on May 20, 2014, the day her opposition to the motion was due, to ask the trial court to continue the hearing on the motion. Shannon-Yeganhe argued she needed more time to conduct discovery and prepare an opposition because her former counsel had not conducted any significant discovery before he substituted out of the case and Shannon-Yeganhe, despite diligently searching for new counsel, had not yet been able to replace him.

Because Shannon-Yeganhe had not given proper notice of the ex parte application, the trial court continued the hearing on the application to May 23, 2014, at which time attorney Eric Nordskog substituted in as counsel for Shannon-Yeganhe and appeared on her behalf to argue the ex parte application. After hearing argument, the trial court denied the application, but, finding the case to be a "complicated" personal injury case, the court transferred it from the personal injury court to an individual calendar court and vacated all hearing dates.

On June 24, 2014 Ternian re-filed his motion for summary judgment in the new department, and nine days later Baron also filed a motion for summary judgment. Baron contended he didnot cause or contribute to Shannon-Yeganhe's alleged injuries, a contention he supported with the declaration of Dr. Patrick Hsieh, a board-certified neurological surgeon. Baron, citing Shannon-Yeganhe's deposition testimony, also argued her action was barred by the statute of limitations. Shannon-Yeganhe did not file written oppositions to either motion.

On September 23, 2014 the trial court, Judge Kevin Brazile, heard the doctors' motions for summary judgment. Shannon-Yeganhe appeared at the hearing without counsel and stated she was representing herself. When the court pointed out she had not filed written opposition to either motion, Shannon-Yeganhe stated she found out "seconds ago" her attorney, Nordskog, would not be appearing at the hearing. She presented the court with what she described as "doctors' letters to [her] attorney . . . which state[d] that it fell below the standard of care for . . . the entire group that operated on me." The trial court stated: "Still doesn't change the statute of limitations argument because that's the basis for granting the motion. Failure to file a separate statement, failure to file opposition, and, more importantly, it's barred by the statute of limitations."

In the trial court's order granting Ternian's motion, the court, "[a]fter full consideration of the evidence," ruled that Dr. Yost's declaration established Ternian's treatment of Shannon-Yeganhe "was well within the standard of care in the community," Dr. Yost's declaration established to a reasonable degree of medical probability Ternian did not cause or contribute to Shannon-Yeganhe's alleged injuries, and the applicable statute of limitations barred the action. In the court's written order granting Baron's motion, the court, "[a]fter full consideration of the evidence," the papers, and oral argument, ruled that Baronhad "shown by admissible evidence and reasonable inferences therefrom, not contradicted by other evidence or inferences," the action against him had no merit and there were no triable issues of material fact.

B. The Trial Court Denies Shannon-Yeganhe's Motion To Set Aside the Orders Granting the Motions by Ternian and Baron for Summary Judgment

On December 23, 2014 Shannon-Yeganhe, represented by new counsel, filed an ex parte application for an order setting aside the orders granting Ternian's and Baron's motions for summary judgment.² Suggesting the trial court had granted the motions "by default," Shannon-Yeganhe argued the court should set aside the orders granting the motions because her former attorney, Nordskog, had abandoned her without filing oppositions to the motions and she had been unable to oppose the motions without counsel because of her brain damage. In support of the application, new counsel for Shannon-Yeganhe filed a declaration stating he became involved in the case in late October 2014, substituted in as counsel for Shannon-Yeganhe on November 3, 2014, but was unable to work on the case from November 8 to November 24, 2014 because of a pre-paid vacation. "Otherwise," he stated, "I would have filed this ex parte application earlier."

The trial court deemed the ex parte application a "Motion to Set Aside the Default Summary Judgments," set a deadline for filing opposition, and scheduled the matter for hearing onJanuary 14, 2015. After receiving oppositions and additional briefing, the court continued the hearing to February 18, 2015.³ On that date the court, Judge Dalila C. Lyons, heard argument and denied the motion without prejudice on the ground the court lacked "jurisdiction to rule on the merits." In her written ruling, Judge Lyons stated that the motion was "truly a [m]otion for [r]econsideration" of the orders granting the doctors' motions for summary judgment and that, if Shannon-Yeganhe wanted to re-file the motion, she should do so in the department to which the judicial officer who had issued the orders, Judge Brazile, had since moved.

Three months later, on May 12, 2015, Shannon-Yeganhe filed a motion to set aside the orders granting the doctors' motions for summary judgment to be heard by Judge Brazile. She argued the court should exercise its inherent equitable powers to set aside the orders in light of Nordskog's "abandonment" of her. She also suggested Code of Civil Procedure section 473 authorized the court to set aside the orders, although she did not explain how that statute applied.⁴ After receiving oppositions and additional briefing, Judge...