Filed 5/26/23 Patkins v. Piantini 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
DAVID C. PATKINS,
Plaintiff and Appellant, E077938
v. (Super.Ct.No. CIVDS1504254)
REBECA PIANTINI, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed.
David C. Patkins, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
1 This opinion constitutes this court’s third time addressing this case. 1 In the last
appeal, we affirmed the trial court’s denial of the request of plaintiff and appellant
David C. Patkins (Plaintiff) for entry of a default judgment against defendant and
respondent Rebeca Piantini, M.D. (Defendant), but reversed the dismissal of the case
due to a lack of notice that dismissal would be considered at the default prove-up
hearing.
Upon remand, the trial court issued an order to show cause re: dismissal.
Plaintiff moved for the appointment of counsel or an expert in the field of neurology.
The trial court denied the motion and dismissed the case. In the instant appeal, Plaintiff
contends the trial court erred by not considering the required factors for his motion and
by not granting him leave to amend. We affirm the judgment.
PROCEDURAL HISTORY
A. CRIMINAL CASE
In 2002, in Riverside County Superior Court, a jury found Plaintiff guilty of
second degree murder (Pen. Code, § 187) and child abuse resulting in death (Pen. Code,
§ 273a).2 Defendant is a forensic pediatrician, who wrote a medical report concluding
the six-month-old victim died of “abusive head trauma”; she also testified at Plaintiff’s
preliminary hearing and criminal trial.
1 The first opinion was Patkins v. Piantini (Sept. 7, 2017, E065666) [nonpub. opn.] [2017 WL 3909118]. The second opinion was Patkins v. Piantini (Dec. 16, 2020, E073358) [nonpub. opn.] [2020 WL 7383441].
2 In 2003, this court affirmed the judgment in Plaintiff’s criminal case. (People v. Patkins (Nov. 19, 2003, E032757) [nonpub. opn.] [2003 WL 22719316].)
2 B. CIVIL PROCEEDINGS AND THE FIRST APPEAL
In March 2015, Plaintiff sued Defendant for (1) fraud; (2) intentional infliction of
emotional distress; and (3) violations of the Business and Professions Code (Bus. &
Prof. Code, §§ 2230.5, subd. (C), 22343 subds. (d) & (e), 2262). Plaintiff alleged that
Defendant attended the victim’s autopsy and, by means of fraud, affected the San
Bernardino County deputy medical examiner’s conclusion concerning the victim’s
cause of death. Plaintiff asserted the autopsy findings did not support abusive head
trauma as the victim‘s cause of death; however, because of Defendant’s fraud, abusive
head trauma was listed as the victim’s cause of death.
In September 2015, Plaintiff requested entry of a default judgment against
Defendant. The trial court denied Plaintiff’s request and dismissed the case with
prejudice. Plaintiff appealed. In September 2017, this court affirmed the denial of the
request for a default judgment but reversed the dismissal of the case. The dismissal was
reversed because there was no notice given to Plaintiff that the case might be dismissed,
e.g., an order to show cause why the case should not be dismissed.
C. FIRST REMAND AND SECOND APPEAL
In December 2017, Plaintiff filed a first amended complaint (FAC). In October
2018, a trial court clerk entered Defendant’s default. In July 2019, during a default
prove-up hearing, the trial court denied Plaintiff’s request for a default judgment and
dismissed the case with prejudice.
3 Plaintiff appealed, and, in December 2020, this court affirmed the order denying
Plaintiff’s request for a default judgment but reversed the dismissal of the case. In our
2020 opinion, we explained that a default judgment cannot be entered if the complaint
fails to state a cause of action. We then examined whether the FAC set forth a properly
pled cause of action. We explained in detail the problems with Plaintiff’s FAC and
concluded that the FAC did not set forth a properly pled cause of action. Specifically,
we concluded that the FAC failed to allege facts indicating that Defendant’s opinion
was false or based on non-existent facts. We explained that the material facts of the
FAC reflected that Plaintiff was suing Defendant for expressing her opinion. However,
we reversed the dismissal because Plaintiff was not notified that the case might be
dismissed at the default prove-up hearing.
D. SECOND REMAND
In May 2021, the trial court issued an order to show cause re: dismissal (the
OSC). In June 2021, Plaintiff moved for the appointment of counsel or an expert in
neurology. In the motion, Plaintiff asserted that he presented a prima facie case in
support of his FAC, but he was being denied a default judgment due to a lack of expert
testimony, which he was unable to afford.
In August 2021, in Plaintiff’s response to the OSC, he asserted that he was being
denied access to the court due to his inability to afford an expert. Plaintiff contended
Mary S. Genevieve, M.D., a neurologist, was willing to work on Plaintiff’s case, but she
would only work with Plaintiff through a lawyer for Plaintiff, which he did not have. In
4 September 2021, at the hearing on the OSC, the trial court denied Plaintiff’s motion for
appointment of counsel or an expert and dismissed the case with prejudice.
DISCUSSION
A. THREE-STEP ANALYSIS
Plaintiff contends the trial court erred by failing to conduct the required three-
step inquiry for analyzing an indigent plaintiff’s request for counsel or an expert.
“Under California law, the appointment of counsel for an indigent prisoner
pursuing a civil action is an aspect of the right of access to the courts.” (Smith v.
Ogbuehi (2019) 38 Cal.App.5th 453, 465 (Smith).) “[T]he choice of measures to
safeguard a prisoner’s right, as a plaintiff or defendant, to meaningful access to the
courts to prosecute a civil action is committed to the trial court’s discretion.” (Id. at p.
468.)
“The exercise of a trial court’s discretion is guided by a three-step inquiry . . . .
[Citations.] First, the trial court determines whether the prisoner is indigent. Second,
the court determines whether the lawsuit involves a bona fide threat to the inmate’s
personal or property interests. If both conditions are satisfied, the trial court must
consider the measures available to protect [the] appellant’s right of meaningful access to
the courts, including the appointment of counsel. Where the indigent prisoner’s civil
action is bona fide and his or her access to the court is being impeded, a trial court must
provide a remedy; it may not choose to do nothing.” (Smith, supra, 38 Cal.App.5th at p.
458.)
5 The record on appeal includes a minute order of the trial court’s ruling that reads
in relevant part, “Oral argument presented by plaintiff in opposition to the Court’s
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Filed 5/26/23 Patkins v. Piantini 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
DAVID C. PATKINS,
Plaintiff and Appellant, E077938
v. (Super.Ct.No. CIVDS1504254)
REBECA PIANTINI, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed.
David C. Patkins, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
1 This opinion constitutes this court’s third time addressing this case. 1 In the last
appeal, we affirmed the trial court’s denial of the request of plaintiff and appellant
David C. Patkins (Plaintiff) for entry of a default judgment against defendant and
respondent Rebeca Piantini, M.D. (Defendant), but reversed the dismissal of the case
due to a lack of notice that dismissal would be considered at the default prove-up
hearing.
Upon remand, the trial court issued an order to show cause re: dismissal.
Plaintiff moved for the appointment of counsel or an expert in the field of neurology.
The trial court denied the motion and dismissed the case. In the instant appeal, Plaintiff
contends the trial court erred by not considering the required factors for his motion and
by not granting him leave to amend. We affirm the judgment.
PROCEDURAL HISTORY
A. CRIMINAL CASE
In 2002, in Riverside County Superior Court, a jury found Plaintiff guilty of
second degree murder (Pen. Code, § 187) and child abuse resulting in death (Pen. Code,
§ 273a).2 Defendant is a forensic pediatrician, who wrote a medical report concluding
the six-month-old victim died of “abusive head trauma”; she also testified at Plaintiff’s
preliminary hearing and criminal trial.
1 The first opinion was Patkins v. Piantini (Sept. 7, 2017, E065666) [nonpub. opn.] [2017 WL 3909118]. The second opinion was Patkins v. Piantini (Dec. 16, 2020, E073358) [nonpub. opn.] [2020 WL 7383441].
2 In 2003, this court affirmed the judgment in Plaintiff’s criminal case. (People v. Patkins (Nov. 19, 2003, E032757) [nonpub. opn.] [2003 WL 22719316].)
2 B. CIVIL PROCEEDINGS AND THE FIRST APPEAL
In March 2015, Plaintiff sued Defendant for (1) fraud; (2) intentional infliction of
emotional distress; and (3) violations of the Business and Professions Code (Bus. &
Prof. Code, §§ 2230.5, subd. (C), 22343 subds. (d) & (e), 2262). Plaintiff alleged that
Defendant attended the victim’s autopsy and, by means of fraud, affected the San
Bernardino County deputy medical examiner’s conclusion concerning the victim’s
cause of death. Plaintiff asserted the autopsy findings did not support abusive head
trauma as the victim‘s cause of death; however, because of Defendant’s fraud, abusive
head trauma was listed as the victim’s cause of death.
In September 2015, Plaintiff requested entry of a default judgment against
Defendant. The trial court denied Plaintiff’s request and dismissed the case with
prejudice. Plaintiff appealed. In September 2017, this court affirmed the denial of the
request for a default judgment but reversed the dismissal of the case. The dismissal was
reversed because there was no notice given to Plaintiff that the case might be dismissed,
e.g., an order to show cause why the case should not be dismissed.
C. FIRST REMAND AND SECOND APPEAL
In December 2017, Plaintiff filed a first amended complaint (FAC). In October
2018, a trial court clerk entered Defendant’s default. In July 2019, during a default
prove-up hearing, the trial court denied Plaintiff’s request for a default judgment and
dismissed the case with prejudice.
3 Plaintiff appealed, and, in December 2020, this court affirmed the order denying
Plaintiff’s request for a default judgment but reversed the dismissal of the case. In our
2020 opinion, we explained that a default judgment cannot be entered if the complaint
fails to state a cause of action. We then examined whether the FAC set forth a properly
pled cause of action. We explained in detail the problems with Plaintiff’s FAC and
concluded that the FAC did not set forth a properly pled cause of action. Specifically,
we concluded that the FAC failed to allege facts indicating that Defendant’s opinion
was false or based on non-existent facts. We explained that the material facts of the
FAC reflected that Plaintiff was suing Defendant for expressing her opinion. However,
we reversed the dismissal because Plaintiff was not notified that the case might be
dismissed at the default prove-up hearing.
D. SECOND REMAND
In May 2021, the trial court issued an order to show cause re: dismissal (the
OSC). In June 2021, Plaintiff moved for the appointment of counsel or an expert in
neurology. In the motion, Plaintiff asserted that he presented a prima facie case in
support of his FAC, but he was being denied a default judgment due to a lack of expert
testimony, which he was unable to afford.
In August 2021, in Plaintiff’s response to the OSC, he asserted that he was being
denied access to the court due to his inability to afford an expert. Plaintiff contended
Mary S. Genevieve, M.D., a neurologist, was willing to work on Plaintiff’s case, but she
would only work with Plaintiff through a lawyer for Plaintiff, which he did not have. In
4 September 2021, at the hearing on the OSC, the trial court denied Plaintiff’s motion for
appointment of counsel or an expert and dismissed the case with prejudice.
DISCUSSION
A. THREE-STEP ANALYSIS
Plaintiff contends the trial court erred by failing to conduct the required three-
step inquiry for analyzing an indigent plaintiff’s request for counsel or an expert.
“Under California law, the appointment of counsel for an indigent prisoner
pursuing a civil action is an aspect of the right of access to the courts.” (Smith v.
Ogbuehi (2019) 38 Cal.App.5th 453, 465 (Smith).) “[T]he choice of measures to
safeguard a prisoner’s right, as a plaintiff or defendant, to meaningful access to the
courts to prosecute a civil action is committed to the trial court’s discretion.” (Id. at p.
468.)
“The exercise of a trial court’s discretion is guided by a three-step inquiry . . . .
[Citations.] First, the trial court determines whether the prisoner is indigent. Second,
the court determines whether the lawsuit involves a bona fide threat to the inmate’s
personal or property interests. If both conditions are satisfied, the trial court must
consider the measures available to protect [the] appellant’s right of meaningful access to
the courts, including the appointment of counsel. Where the indigent prisoner’s civil
action is bona fide and his or her access to the court is being impeded, a trial court must
provide a remedy; it may not choose to do nothing.” (Smith, supra, 38 Cal.App.5th at p.
458.)
5 The record on appeal includes a minute order of the trial court’s ruling that reads
in relevant part, “Oral argument presented by plaintiff in opposition to the Court’s
tentative to dismiss the matter. [¶] After Argument, [¶] [t]he Court’s tentative becomes
the ruling[.] [¶] . . . [¶] Plaintiff’s request for Appointment of Counsel, appointment of
Expert, and investigator is denied.” The minute order from the hearing on the OSC
reflects that a court reporter reported the hearing. However, the record does not include
a reporter’s transcript. Also, the record does not include the tentative ruling that became
the final ruling.
It is Plaintiff’s burden to provide this court with a sufficient record to analyze the
issues raised on appeal, and he failed to meet that burden. Without a reporter’s
transcript or a reasoned written decision, we cannot know what factors the trial court
considered. In other words, we have no means of knowing whether the trial court
conducted the three-step inquiry. Therefore, Plaintiff cannot prevail on this issue.3
(Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)
3 To the extent Plaintiff might argue that he was unable to obtain a reporter’s transcript due to the expense of the transcript (Cal. Rules of Court, rule 8.130(a)(4)), he could have submitted a settled statement to describe the oral proceedings in the trial court (Cal. Rules of Court, rules 8.130(h) & 8.137).
6 B. LEAVE TO AMEND
Next, Plaintiff contends the trial court erred by denying him leave to amend the
FAC in order “to cure any defect—if any[4 ]—within admitted bona-fide and well
‘pleaded’ ” allegations. Plaintiff bears the burden of explaining how he could amend
the FAC to state a cause of action. (Cantu v. Resolution Trust Corp. (1992) 4
Cal.App.4th 857, 890; Total Call Internat. Inc. v. Peerless Ins. Co. (2010) 181
Cal.App.4th 161, 166.)
In Plaintiff’s brief in lieu of oral argument, he asserted there are additional
allegations he could set forth if permitted to amend. The allegations pertain to an
unpublished appellate opinion, People v. Cruz (Jan. 26, 2010, D055497) [nonpub. opn.]
[2010 WL 292676]. Plaintiff contends the People v. Cruz opinion involves allegations
similar to the instant case in that, in Cruz, Defendant “again commits the same
intentional material misrepresentations.” The Cruz opinion concerns whether the trial
court erred by permitting the prosecutor to present rebuttal evidence when the defense
did not have time to secure a surrebuttal expert witness. (Id. at pp. *8-9.) Given that
Cruz is not focused on alleged fraud by Defendant, we fail to see how citations to Cruz
could cure the omissions in the FAC.
Plaintiff asserts this court was incorrect in our prior holding that the FAC failed
to state a cause of action. Plaintiff asserts, “This court refuses to acknowledge the
material context, or factual basis, of Def’s injuries [sic] are different from every other
4 In our last opinion in this case, we concluded that the FAC failed to state a cause of action.
7 expert interpretation in this case.” The issue is not whether Defendant’s opinion is
different from every other expert’s opinion. The issue is whether Plaintiff can
sufficiently allege that Defendant implied a non-existent factual basis for her opinion.
(Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 893 (Jolley).) In
other words, Plaintiff incorrectly focuses on other experts allegedly disagreeing with
Defendant, when the relevant issue is whether Defendant incorrectly presented the
information underlying her opinion. For example, whether Defendant asserted or
implied a bone was broken when it was not actually broken. The focus should be on
Defendant’s opinion and the medical records—not Defendant’s opinion and other
experts’ opinions.
Plaintiff contends that the deputy medical examiner who conducted the autopsy,
Steven Trenkle, M.D., “never ‘agreed’ [that] the facts that ‘underlie’ Def’s [shaken baby
syndrome] diagnosis exist.” The issue is not whether Trenkle agreed to the same set of
facts as Defendant. Typically, a trial is necessary because people have different views
of the facts. Thus, a disagreement about the facts is to be expected at a trial. The
relevant issue is whether Defendant implied the existence of facts that no one could
reasonably think existed when giving her opinion. For example, if Defendant implied a
bone was broken when no medical record indicated that bone was broken. (Jolley,
supra, 213 Cal.App.4th at p. 893.)
Plaintiff asserts that at the preliminary hearing and trial, Defendant relied upon
“two different and irreconcilable sets of facts.” Whether Defendant contradicted herself
8 is not the relevant issue. The pertinent issue is whether, when Defendant gave her
opinion, she implied the existence of non-existent facts.
In sum, Plaintiff has failed to demonstrate that he should have been granted leave
to amend.5
DISPOSITION
The judgment is affirmed. Plaintiff is to bear his own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
5 Plaintiff’s August 8, 2022, request for judicial notice is denied.