Do v. Dang CA1/5

Filed 8/27/13 Do v. Dang CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

TUAN ANH DO,

Plaintiff and Appellant, A137779 v. (Alameda County PHUONG DUC DANG et al., Super. Ct. No. RG09469814)

Defendants and Respondents. ___________________________________/

Plaintiff Tuan Anh Do (plaintiff) appeals in propria persona from a judgment entered after the trial court denied his motion for leave to amend the complaint for a fourth time and granted Drs. Phuong Duc Dang, M.D. (Dr. P. Dang) and Chuc Van Dang, M.D. (Dr. C. Dang)’s respective motions for summary judgment. Plaintiff’s briefs are difficult to understand, but he seems to contend: (1) the trial court judge was biased against him; (2) the court erred by denying his motion for leave to amend the complaint a fourth time; and (3) the court erred by granting summary judgment. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In early 2008, plaintiff went to his primary care physician, Dr. P. Dang, with a complaint of pelvic pain. Dr. P. Dang evaluated plaintiff and referred him to a urologist. The urologist diagnosed plaintiff with hernias and recommended corrective surgery. Dr.

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P. Dang then referred plaintiff to a surgeon, Dr. C. Dang. Dr. C. Dang explained hernia surgery to plaintiff and discussed the risks of such surgery with him. Dr. C. Dang also answered plaintiff’s questions about the surgery. Before the surgery, plaintiff signed an informed consent form. Dr. C. Dang performed the surgery. After the surgery, plaintiff experienced pain and was left with “two long scars,” which were “not as minimal” as his “[s]urgeon had [led him] to expect.” Plaintiff sued Dr. P. Dang, Dr. C. Dang (collectively defendants) and others for various claims, including fraud and battery. The trial court sustained defendants’ demurrers to the second amended complaint but granted plaintiff leave to amend to allege a cause of action for professional negligence.1 Plaintiff filed a third amended complaint alleging a sole claim for professional negligence against defendants. Defendants filed separate summary judgment motions relying on expert testimony demonstrating their conduct complied with the standard of care and was not a substantial factor in causing plaintiff’s injury. Plaintiff opposed the motions, but offered no competent evidence that defendants did not comply with the standard of care or that they caused or contributed to his alleged injuries.2 Plaintiff did not offer expert testimony in opposition to defendants’ motions. The court granted defendants’ motions. It determined defendants were entitled to summary judgment because plaintiff failed to “present any competent evidence to present a triable issue of fact as to any purported malpractice[,]” including expert testimony. In 1 Plaintiff appealed from the demurrer rulings. This court dismissed portions of the appeal and otherwise affirmed. (Do v. Dang (Mar. 25, 2011, A128467) [nonpub. opn.].) We deny plaintiff’s June 17, 2013 request for judicial notice of various documents from his “previous appeal” because it fails to comply with Rules of Court, rule 8.252. 2 Plaintiff moved to amend the complaint to add causes of action for fraud and battery, and to add a punitive damages claim. The trial court denied the motion, concluding it was untimely and that plaintiff could not establish a substantial probability of prevailing on the claims under Code of Civil Procedure section 425.13. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44 [plaintiff bears burden of showing that he can amend his pleading to state a cause of action].) Unless otherwise noted, all statutory references are to the Code of Civil Procedure.