Simms v. Knapik CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

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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.

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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

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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
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separate motion for summary judgment on March 9, 2021. Later in March 2021, Simms

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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]

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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.

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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

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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

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finding Simms did not carry his burden of proving Knapik engaged in spoliation of
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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.”
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(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

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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.
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Undesignated statutory references are to the Code of Civil Procedure.

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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).)
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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

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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.

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review the trial court’s ruling for abuse of discretion. (Braganza v. Albertson’s LLC

(2021) 67 Cal.App.5th 144, 152 (Braganza.) “Continuance requests under section 437c,

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

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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

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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

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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.

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