California Court of Appeal Jan 9, 2024 No. E077831Unpublished
Filed 1/9/24 Simms v. Knapik CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
TIMOTHY SIMMS,
Plaintiff and Appellant, E077831
v. (Super.Ct.No. CIVDS1930938)
STEVEN M. KNAPIK, et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Timothy Simms, in pro. per., for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick, and Nicole F. DeVanon;
Lewis Brisbois Brisgaard & Smith, Gregory G. Lynch, and John D. Schumacher for
Defendants and Respondents.
In a related appeal, we held that plaintiff and appellant Timothy Simms was not
barred by Government Code claim presentation requirements from suing a local health
care district for medical negligence. (Simms v. Bear Valley Community Healthcare
1
District (June 28, 2022, E075184 [nonpub. opn.].) Simms had presented a claim, though
a defective one. (Ibid.) By failing to notify Simms of the claim’s insufficiencies, the
healthcare district had waived their defense that the claim was insufficient, so we
permitted Simms to proceed with a complaint. (Ibid.)
Simms now appeals the trial court’s order granting summary judgment for two
doctors who treated him at one of the health care district’s facilities. Simms argues the
trial court abused its discretion by denying his requests for additional time to conduct
discovery, to retain an expert to support his oppositions to the doctors’ motions for
summary judgment, and to receive certain discovery rulings.
We find no abuse of discretion and affirm the judgment.
I. BACKGROUND
Bear Valley Community Healthcare District (Bear Valley) “is a local health care
district organized under Health and Safety Code section 32000 et seq. On December 8,
2017, Simms was injured in a fall and sought treatment at Bear Valley’s emergency
room. In December 2017 and January 2018, Simms went to appointments with several
Bear Valley medical providers to obtain additional treatment for continuing pain from his
injuries.” (Simms v. Bear Valley Community Healthcare District, supra, E075184.)
Defendants and respondents Steven M. Knapik, D.O., and Jeffrey D. Orr, M.D., are two
of those Bear Valley medical providers.
On December 26, 2017, Knapik treated Simms at Bear Valley’s Brenda Boss
Family Resource Center, and Orr treated him there on January 18 and January 26, 2018.
2
The gist of Simms’s single cause of action, for medical negligence, is that Knapik and
Orr both failed to take his complaints of persistent pain and other “physical and mental
symptoms” seriously, refused to order additional tests, such as an MRI scan, to discover
the source of those symptoms, and failed to prescribe appropriate medication to treat his
chronic pain. In July 2018, Simms says he learned of “catastrophic results” shown by an
MRI scan of his neck, ordered by a different medical provider, a chiropractor. In
Simms’s view, articulated in the operative first amended complaint, Knapik and Orr
“failed to timely diagnose and properly treat” him, causing “irreparable physical
damage,” as well as mental and emotional injuries.
Knapik and Orr have different perspectives, as presented in their separate
summary judgment motions. During his December 26, 2017 visit with Simms, Knapik
reviewed previously taken X-rays and found no evidence of any fractures, dislocations, or
other acute injuries. Simms complained of persistent right knee pain, so Knapik
examined that knee. He discovered no evidence of swelling or instability. On that basis,
Knapik concluded that insurance would be unlikely to approve an MRI. He
recommended physical therapy and continued anti-inflammatory medication to treat
Simms’s “subacute” reported injury. Simms became upset and left the room before
Knapik completed his examination.
At his first visit with Orr, Simms complained of persistent and severe pain on his
entire right side—ankle, knee, hip, and lower back. Simms also changed his story about
what happened during his fall on December 8, 2017. During his first visit to the
3
emergency room, he had denied hitting his head. Now, he reported he hit his forehead
during the fall and, though he did not lose consciousness, he vomited 30 minutes later.
He “presently complained of occipital headache, some blurry vision and ringing in his
ears as well as clicking of his jaw and difficulty concentrating.” Orr noted that X-rays
(which had by then been taken twice) and a head CT scan were all normal. Orr referred
Simms for an ophthalmology exam, prescribed Meloxicam for pain, and prescribed
physical therapy.
At his second visit, Simms told Orr the Meloxicam was not working to control his
pain, and requested “something stronger.” He also complained of increasing panic
attacks, though he did not specify their frequency. He requested a refill of his
prescription for Clonazepam, stating that he felt it was “‘dangerous’” for him not to have
it, and saying he had been taking it “‘occasionally’ as needed, approximately once per
week,” but that he had no more left. Orr called the pharmacy, however, and learned
Simms had picked up a prescription for 60 tablets of Clonazepam the day before. Orr
told Simms he “would be unable to assist him with his main concerns that day” because
Simms was “being dishonest.” Orr included in Simms’s medical records his impression
that Simms was engaging in “drug-seeking behavior.”
Knapik moved for summary judgment on January 13, 2021, while Orr filed a 1 separate motion for summary judgment on March 9, 2021. Later in March 2021, Simms
1 Orr’s motion was first submitted in February 2021, but the documents were all returned unfiled because they were on compact discs, a format the Superior Court does not accept. Apparently for the same reason, many of Knapik’s exhibits were also initially [footnote continued on next page]
4
requested 90-day continuances to oppose both motions. The requests were granted, but
Simms was admonished not to request further continuances on the same or similar
grounds: his chronic pain and other health issues, and “COVID-related family affairs.”
The hearing on Knapik’s motion was continued to July 6, 2021, while the hearing on
Orr’s motion was continued to August 5, 2021.
On June 15, 2021, Simms filed an ex parte application for sanctions against
Knapik, alleging intentional spoliation of evidence. The next day, after receiving
Knapik’s written opposition and hearing oral argument, the trial court denied the
application.
On June 21, 2021, Simms filed an ex parte application for a 120-day continuance
of the hearing on Knapik’s summary judgment motion, to allow additional time to
prepare his opposition. After a hearing on June 25, 2021, the court denied the request.
Simms did not oppose Knapik’s summary judgment motion before the July 6,
2021, hearing. At the hearing, he renewed his request for a continuance. The trial court
denied that request, granted Knapik’s motion, and entered judgment.
On July 21, 2021, Simms filed two ex parte applications. One asked the court to
deem Orr to have admitted the truth of matters specified in Simms’s requests for
admissions based on Orr’s purported failure to respond to those requests. The second
requested a 120-day continuance of the hearing on Orr’s motion for summary judgment,
to allow Simms additional time to prepare his opposition. The trial court initially denied
rejected, though the motion and some supporting documents were filed on January 13, 2021. Knapik’s exhibits were resubmitted and filed March 3, 2021.
5
both applications without prejudice so that a different judge—the one assigned to the case
for all purposes, and thus more familiar with the case—could make the decision.
Simms submitted both renewed ex parte applications on August 3, 2021, and they
were heard together with Orr’s motion for summary judgment on August 5, 2021. Simms
did not oppose Orr’s motion for summary judgment. The trial court denied Simms’s
renewed applications, granted Orr’s motion, and entered judgment.
II. DISCUSSION
Simms argues the trial court abused its discretion by denying his continuance
requests and his discovery motions. Knapik and Orr disagree, asserting that they believe
Simms’s appeal is “procedurally deficient,” in addition to agreeing with the substance of
the trial court’s rulings.
We decline to discuss Knapik and Orr’s procedural arguments except to note that
they are unpersuasive, so we would in any case have to consider Simms’s appeal on the
merits. We turn, then, to whether Simms has demonstrated any abuse of discretion in the
trial court’s rulings. We will discuss the discovery motions before turning to the
continuance requests. “Discovery orders are generally reviewed for abuse of discretion.”
(St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 772 (St. Mary).)
Simms’s motion to sanction Knapik for intentional spoliation asserts that Knapik
falsified Simms’s medical records. Knapik submitted records in support of his motion for
summary judgment that include a progress note, documenting Knapik’s perception of
Simms’s December 26, 2017 appointment. The progress note includes the information
6
that it was created contemporaneously with Simms’s appointment; dictated on the
evening of December 26, 2017, transcribed about two hours later, and electronically
signed by Knapik on December 29, 2017. Records Orr submitted in support of his
summary judgment motion, however, as well as records that Simms had obtained
previously, did not include the progress note. Simms views this inconsistency as a
“‘smoking gun’ and definitive proof . . . that Knapik willfully and intentionally altered”
Simms’s medical records sometime between March 2020, when Orr received Simms’s
medical records in response to a subpoena, and June 2020, when Knapik did.
Simms’s reasoning does not hold water. The records Knapik used to support his
motion were subpoenaed from “Bear Valley Community Health Care District,” while Orr
used records subpoenaed from “Brenda Boss Family Resource Center.” The records
Simms acquired himself were not subpoenaed at all, but obtained through several
informal requests. There are a number of reasons why requests for records that are
similar, but directed to different entities, might result in production of differing sets of
documents. Falsification of records by Knapik is not among the most likely reasons, let
alone one compelled by the evidence, as Simms would have it. For example, perhaps not
all records are routinely transmitted from one entity to the other. Also, sometimes
documents are accidentally lost, or accidentally omitted from a production, by the
custodian of records (who is not Knapik). The trial court did not abuse its discretion by
7
finding Simms did not carry his burden of proving Knapik engaged in spoliation of 2 evidence, intentional or otherwise.
The trial court did not err in denying Simms’s motion for the court to deem
admitted the requests for admission he propounded to Orr, and in fact it would have been
error to grant that motion. “[A] propounding party who fails to receive a timely response
may move for an order that ‘matters specified in the requests’ are deemed admitted.” 3 (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978; Code Civ. Proc. , § 2033.280, subd.
(b).) Nevertheless, “a responding party’s service, prior to the hearing on the ‘deemed
admitted’ motion, of substantially compliant responses, will defeat a propounding party’s
attempt under section 2033.280 to have the RFAs deemed admitted.” (St. Mary, supra,
223 Cal.App.4th at p. 776.)
Orr responded to Simms’s requests for admission on time, in December 2020, but
only by email. According to Simms, he never received that email. Moreover, he never
consented to electronic service. (See former § 1010.6, subd. (a)(2)(A)(ii) [electronic
2 On the eve of oral argument, Simms filed a motion to augment the record with additional versions of his medical records, subpoenaed from several different entities. “‘[W]hen reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) “Augmentation does not function to supplement the record with materials not before the trial court.” (Ibid.; see Cal. Rules of Court, rule 8.155(a)(1)(A) [augmentation limited to documents “filed or lodged in the case in superior court”].) The motion is therefore denied. Moreover, our reasoning and conclusions here would be the same, even if these documents were added to our record. 3 Undesignated statutory references are to the Code of Civil Procedure.
8
service is “authorized if a party or other person has expressly consented to receive
electronic service in that specific action”]; see also Cal. Rules of Court, rule 2.251(b)(1).) 4 As such, Orr’s email-only service of discovery responses was improper. Orr describes
his “failure to serve the responses via U.S. Mail” as “inadvertent.”
As Simms concedes, however, he was served by mail with Orr’s responses on July
23, 2021. That is before Simms filed his renewed motion to have the requests deemed
admitted, let alone before the motion hearing. Simms has not argued that Orr’s responses
were less than substantially compliant in any respect other than their initial service by
email. As such, it would have been legal error for the court to grant Simms’ motion. (St.
Mary, supra, 223 Cal.App.4th at p. 776 [“‘If the party manages to serve its responses
before the hearing, the court has no discretion but to deny the motion.’”].)
We also find no abuse of discretion in the trial court’s denials of Simms’s
continuance requests. Section 437c, subdivision (h), allows a party to request that the
hearing on a summary judgment motion be continued to allow additional discovery to be
completed upon a showing that “facts essential to justify opposition may exist but cannot
for reasons stated be presented.” “The decision to grant or deny a continuance request
under section 437c, subdivision (h), is vested in the trial court’s discretion,” and we
4 It is debatable whether Orr’s use of email service without consent amounts to a failure to respond at all to requests for admissions, properly subject to a motion to have requests deemed admitted, or instead a deficient response, properly subject to a motion to compel. (See St. Mary, supra, 223 Cal.App.4th at p. 776 [discussing differences between “‘deemed admitted’” motions and motions to compel].) The parties do not raise that question and we will not attempt to answer it.
9
review the trial court’s ruling for abuse of discretion. (Braganza v. Albertson’s LLC
subdivision (h), are to be liberally granted.” (Ibid.)
Nevertheless, as our division has held, lack of diligence may be a ground for
denying a party’s request for a continuance under section 437c, subdivision (h). (See
Braganza, supra, 67 Cal.App.5th at pp. 154-156 [“a party who seeks a continuance under
section 437c, subdivision (h), must show why the discovery necessary to oppose the
motion for summary judgment or summary adjudication could not have been completed
sooner”]. Some other cases have held on particular facts that lack of diligence may not
support denial of a continuance. (See Bahl v. Bank of America (2001) 89 Cal.App.4th
389, 398 [“when a party submits an affidavit demonstrating that facts essential to justify
opposition may exist,” lack of diligence may not permit a court to deny a continuance];
Frazee v. Seely, supra, 95 Cal.App.4th at p. 635 [suggesting in dicta that where certain
deposition transcripts could provide evidence that was “imperative” to deciding case, a
party’s lack of diligence in completing discovery would not permit denying a request for
continuance under § 437c, subd. (h)].) This is a case, like Braganza, where a trial court
was in its discretion to deny a continuance and thus require an opposition. Even when an
opposition is ordered, a party can show in the opposition itself that “essential” facts are
missing and needed. (See § 437c(h).)
The record shows that Simms did not act with diligence in completing discovery.
Simms filed this lawsuit in October 2019. As of June 2021, he had not retained an expert
10
willing to opine in support of his medical negligence claim. He had not taken or even
noticed any depositions. He had not subpoenaed his medical records, though he had
obtained some of them through other means. He had propounded some written discovery
requests, but for months he took no action regarding perceived deficiencies in the
responses he received and the actions he finally took—the two failed discovery
motions—did not advance the building of his case. Even after 90-day continuances were
granted as to the pending summary judgment motions, Simms was hardly closer to
developing evidence sufficient to oppose the pending motions than before the
continuances.
Simms fares no better if his requests are viewed through the requirement of good
cause, rather than section 437c, subdivision (h). “When a continuance of a summary
judgment motion is not mandatory, because of a failure to meet the requirements of
[section 437c, subd. (h)], the court must determine whether the party requesting the
continuance has nonetheless established good cause therefor. That determination is
within the court’s discretion.” (Lerma, supra, 120 Cal.App.4th at p. 716.)
Of course, often, personal or family medical emergencies suffered by an attorney
or self-represented litigant would establish good cause for a continuance. For example,
in Lerma, supra, 120 Cal.App.4th at p. 716, the court of appeal found the trial court
abused its discretion by denying a continuance warranted by an attorney’s medical
emergency. The court reasoned: “This is not a case where a party has been dilatory in its
efforts and the court needs to seize control of the situation and force the party to engage
11
in diligent pursuit of litigation objectives. It is simply a case in which the frailties of
mankind’s physical housing created a brief interference with the efficient resolution of a
motion.” (Id. at p. 718.)
Even so, this case is at least arguably different. Simms made little progress in
conducting discovery for several years, despite previously granted continuances.
Moreover, there is reason to doubt that Simms’s medical and family circumstances are
solely responsible for that delay. According to Simms, he spent hundreds of hours over
several weeks working on his discovery motions, which as discussed above were
properly and (from an objective standpoint) predictably denied. Those hours could have
been devoted to other litigation tasks, such as conducting the various items of discovery
necessary for a plaintiff’s medical negligence case to survive summary judgment. While
it is understandable that non-attorney litigants representing themselves might have
difficulty efficiently and strategically allocating their efforts, our Supreme Court has long
held self-represented civil litigants to the same standards as attorneys: “Except when a
particular rule provides otherwise, the rules of civil procedure must apply equally to
parties represented by counsel and those who forgo attorney representation. [...] A
doctrine generally requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to the other
parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Perhaps
the trial court could have reached a different decision, giving more weight than it did to
the various reasons for delay that Simms has stated. On this record, however, we cannot
12
say that it was compelled to do so. Thus, there was no abuse of the trial court’s
discretion.
III. DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
CODRINGTON Acting P. J. MENETREZ J.
13
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in denying the plaintiff's requests for discovery sanctions, motions to deem requests admitted, and continuances of summary judgment hearings. The plaintiff failed to demonstrate diligence in conducting discovery, and the defendants' service of discovery responses prior to the hearing rendered the motion to deem matters admitted moot.
Issues
Did the trial court abuse its discretion by denying the plaintiff's motion for sanctions regarding alleged spoliation of evidence?
Did the trial court err in denying the plaintiff's motion to deem requests for admission admitted?
Did the trial court abuse its discretion by denying the plaintiff's requests for continuances to conduct further discovery and oppose summary judgment?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion.”
“The record shows that Simms did not act with diligence in completing discovery.”