Rhymes v. Southern Cal. Permanente Medical Group CA4/1

Filed 10/20/26 Rhymes v. Southern Cal. Permanente Medical Group CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA LASHAWNDA SHANELL RHYMES, D086837 Plaintiff and Appellant, (Super. Ct. No. 25CU003845C) v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Lashawnda Shanell Rhymes, in pro. per., for Plaintiff and Appellant. Cole Pedroza and Nicole F. DeVanon; David, Grass, Goldstein & Finaly, Vincent J. Iuliano and Stephanie M. Wong-Fehars, for Defendant and Respondent.  INTRODUCTION Lashawnda Shanell Rhymes appeared at an arbitration hearing without any expert witnesses prepared to testify about her medical malpractice claim. Southern California Permanente Medical Group (Permanente) moved for a nonsuit asserting that an expert opinion was required to establish that its employee had acted in a manner that did not meet the standard of care. The arbitrator denied Rhymes’s oral request for a continuance, declared a nonsuit, and entered an arbitration award in favor of Permanente. On appeal, Rhymes claims the arbitrator violated Code of Civil Procedure1 section 1286.2, subdivision (a), because her rights “were substantially prejudiced by the refusal of the arbitrator[ ] to postpone the hearing upon sufficient cause being shown.” She also claims the arbitrator committed misconduct and that the award was procured by “undue means.” Finding no abuse of discretion and no evidence of misconduct, we affirm. BACKGROUND I. Arbitration Proceedings In March 2022, a Permanente nurse drew blood from Rhymes’s right arm. Rhymes claims the Permanente nurse conducted the venipuncture in a manner that did not conform with the standard of care and caused severe damage to her vascular and nervous systems. The parties agree the claim was subject to a valid arbitration agreement. 1 Undesignated statutory references are to the Code of Civil Procedure. 2 A. Discovery and Motion Practice On February 25, 2023, Rhymes initiated arbitration proceedings by mailing an arbitration demand letter to Permanente.2 After 10 months of discovery, Permanente filed a motion for summary judgment. The motion was supported by an expert opinion that the Permanente nurse’s standard operating procedure for drawing blood complied with the prevailing standard of care.3 Rhymes opposed the motion and provided Permanente with an expert declaration by Sherri Bentley, a registered nurse. Bentley opined the blood draw from Rhymes’s arm was conducted in a manner below the standard of care. After reviewing Bentley’s declaration, Permanente withdrew its motion for summary judgment, conceding that Bentley’s opinion had created a triable issue of material fact. The arbitrator set the arbitration hearing for October 2, 2024, and ordered the parties to designate expert witnesses in a manner compliant with the Code of Civil Procedure. The initial disclosure was set for August 8, and supplemental disclosures were set for September 2. Permanente designated its experts on August 8, but Rhymes made neither initial nor supplemental disclosures. On September 4, 2024, Permanente sent Rhymes a deposition notice setting Bentley’s deposition for September 16. On September 16, Rhymes 2 The demand for arbitration was also directed to Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals. Pursuant to stipulation, Rhymes voluntarily allowed these other entities to be dismissed before the arbitration hearing took place. 3 According to her declaration, the Permanente nurse had no memory of Rhymes or the blood draw. 3 appeared without Bentley. After Permanente made a record of the nonappearance, Rhymes told counsel that she was not in contact with Bentley and represented that she would contact the company Bentley worked for to see if she could “rectify the situation shortly.” Rhymes acknowledged the failure to appear and said, “This is just a claimant in pro se and we’ve had several depositions so it’s just confusion.”4 Later that day, Rhymes served an untimely “ ‘First Expert Exchange,’ ” which designated Bentley as an expert witness. Rhymes provided Bentley’s address and phone number but did not provide any of the other information required by section 2034.260, subdivision (c). Nor did Rhymes follow up with Permanente and make Bentley available for deposition. She also did not list Bentley as a witness on the joint witness list that was submitted to the arbitrator; nor did she list any other expert witnesses. The next day, September 17, 2024, Permanente submitted a written motion in limine to strike Rhymes’s late designation of Bentley as an expert witness and disallow her testimony at the arbitration hearing. Permanente argued that Bentley should be prohibited from testifying because Rhymes’s designation was “unreasonably late” and failed to include information required by statute including Bentley’s qualifications, the substance of her expected testimony, her hourly and daily fees, and a statement under oath that she had agreed to testify. Permanente further argued it would be unfair to allow Bentley to testify because she failed to appear at the noticed 4 At the arbitration hearing, Rhymes later stated, “The issue is that there was a hurricane in Florida, so [Bentley’s] parent company had to evacuate and they were working remotely.” 4 deposition and Rhymes had not committed to making her available at another time. Rhymes submitted an opposition to the motion to strike on September 26, 2024. She acknowledged that she had failed to comply with the expert witness exchange requirements but contended her “missteps” were “the result of unforeseen extraordinary circumstances.” She claimed she had been “unable to coordinate the deposition of her expert witness in a timely manner” because of “the challenges of preparing an Arbitration Brief in pro per” and an alleged violation of her privacy by counsel for Permanente. She asserted that Permanente had “ample opportunity” to depose Bentley at an earlier time and had enough information to address her expected testimony at the arbitration hearing based on her declaration in opposition to the summary judgment motion. She did not seek a continuance of the arbitration hearing. B. Arbitration At the start of the arbitration hearing, on October 2, 2024, the arbitrator addressed Permanente’s motion in limine to strike Bentley’s expert designation and prohibit her testimony about the standard of care. Counsel for Permanente argued its motion should be granted because “it would be incredibly unfair and prejudicial” to Permanente for “Bentley at this late stage show up today and testify at arbitration when [it’s] been denied the opportunity to take an appropriate deposition of her to prepare for the cross- examination.” Counsel asserted he and his client “we’re operating completely blind here.” In response, Rhymes said she had not been able to obtain Bentley’s contact information before the deposition and admitted, “[I]t was an error on my part in terms of coordinating given the circumstances.” She then 5 informed Permanente and the arbitrator that Bentley was not present at the hearing. She said she had tried to arrange for her to appear at the arbitration “over the weekend,” but she “was not successful.” Rhymes asked the arbitrator to grant a continuance so she could attempt to secure Bentley’s attendance. In addition, in the event Bentley’s attendance could not be secured, she asked for permission “to provide another expert that can . . . attest to the standard of care.” The arbitrator said, “I’m at a quandary what to do.” He explained to Rhymes, “Here’s the point: The witness as to [the] standard of care is very critical to the claimant in this case. If that witness is not here and not going forward or not permitted to be here, you have no case under . . . California law, because you filed a claim for medical negligence . . . and you have the burden of proof to prove that.” The arbitrator asked counsel for Permanente whether it was feasible to proceed out of order with the defense case “and then fill in the gaps” with Rhymes’s expert witness “at some later time.” Counsel responded, “There’s absolutely no way. I mean, how can our expert even testify if she doesn’t know the opinions of claimant’s expert?” The arbitrator then asked the parties for the current deadline to render an award. Counsel for Permanente incorrectly reported that the deadline was in eight days, that is October 10, 2024.5 The arbitrator acknowledged that eight days was insufficient time to permit a continuance to depose an expert witness and complete the hearing before the deadline. After a brief recess for the arbitrator to “do some investigation,” he returned and said, “I really don’t buy any of the excuses from [Rhymes] as to 5 The parties agree the actual deadline was December 6, 2024. 6 why she has not complied with the law and provided the witness for deposition. That is absolutely necessary in this case.” Nevertheless, he suggested another option for proceeding forward. He said he could declare the case to be complex and in need of further discovery, reset the arbitration award deadline on that basis, and reset the arbitration hearing date for the following month to allow an expert witness deposition to take place. He summarized his tentative thinking on the record, “[T]hat’s what I’m inclined to do, grant a short continuance for purposes of proceeding with regard to that witness, have her designated as a witness and put [the] burden on [Rhymes] to produce her.” Counsel for Permanente objected and “formally” made a motion for nonsuit. He argued, “[G]ranting a continuance just to allow Ms. Rhymes to see if she can get an expert, see if it’s [going to] be Ms. Bentley or not Ms. Bentley, it may be someone else, and have her be able to then present her evidence on a different day, which she’s admitted to you on the record that she’s not prepared today, the scheduled start of arbitration, and then continuing the case because of that operates as a manifest injustice to [the Permanente nurse] and [Permanente].” After hearing further argument by both parties, the arbitrator granted Permanente’s motion to strike Rhymes’s expert witness designation and preclude her from calling Bentley as a witness during the arbitration. Without an expert witness to testify as to the standard of care, the arbitrator concluded that Rhymes would be unable to proceed with her malpractice claim and granted Permanente’s motion for nonsuit. C. Written Ruling and Award In the written ruling, on October 16, 2024, the arbitrator found that Rhymes “appeared at the hearing without witnesses, and without an expert 7 witness to testify on the issue of the standard of care, and obviously unprepared to proceed.” He further found that expert testimony was required to establish that the venipuncture was conducted in a manner that fell below the standard of care.6 He explained, “The key legal issues in th[e] arbitration [were] whether [the Permanente nurse] . . . acted reasonably in her performance of a standard venipuncture at the request of [Rhymes] and whether [the nurse’s] performance was a substantial factor in causing [Rhymes] to suffer permanent nerve, vein and arterial damage to her right arm and hand. [Rhymes] alleged that the care and treatment she received during the venipuncture fell below the standard of care thereby causing her injuries and damages. To sustain her allegations of professional negligence it was necessary for [Rhymes] to provide a nursing expert to opine on the standard of care regarding the performance of the venipuncture procedures.” Based on these findings, the arbitrator affirmed that he granted Permanente’s motion to strike Rhymes’s designation of Bentley as an expert witness and preclude her from testifying. He further affirmed that he granted Permanente’s motion for nonsuit, reasoning as follows: “[Rhymes] will not be able to proceed in this [medical] malpractice action without a witness to testify as to the standard of care, which is critical in this case. Under the circumstances and in addition to the [applicable arbitration] 6 Rhymes does not challenge this finding by the arbitrator. (See generally, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 [“The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony . . . , unless the conduct required by the particular circumstances is within the common knowledge of the layman.”].) 8 [r]ules, the motion for [n]onsuit is granted, so these proceedings are terminated.”7 II. Petition to Vacate Arbitration Award On January 22, 2025, Rhymes filed a petition to vacate the arbitration award pursuant to section 1286.2, subdivision (a)(1) through (5) in the trial court. The petition alleged the arbitrator “unfairly refused to postpone the [arbitration] hearing or to hear evidence useful to settle the dispute.” It also alleged the arbitrator engaged in corruption and misconduct and exceeded his legal authority. On July 29, 2025, the trial court issued a modified tentative ruling denying the petition.8 The court tentatively ruled as follows: “[Rhymes] speculates the arbitrator was corrupt or committed misconduct, but offers no evidence establishing this corruption. [¶] A decision to exclude an untimely designated expert witness, and the resulting nonsuit ruling are actions well within an arbitrator’s discretionary authority. These actions do not amount to ‘misconduct,’ and did not exceed the arbitrator’s authority.” [¶] “[Rhymes] fails to provide cogent argument or evidence supporting the ‘sufficient cause’ necessary to establish vacation of the decision based on the arbitrator’s refusal to postpone the hearing. It is unclear whether [Rhymes] made any 7 Following the award, Rhymes sought reconsideration of the ruling. The arbitrator denied her request. 8 On July 10, 2025, the trial court issued a tentative ruling granting the petition to vacate based on its mistaken belief that Permanente had failed to file a response to the petition. Permanente informed the court that it had, in fact, filed a response on February 3, 2025, and the court withdrew its tentative ruling. 9 formal request to continue the hearing . . . or informed the arbitrator she needed additional time to locate an expert witness. She also did not make any showing that, if a continuance were granted, she would be able to secure an expert.” The court entered judgment consistent with its tentative ruling on August 15, 2025. DISCUSSION Rhymes contends the trial court erred when it denied her petition to vacate the arbitration award because (1) there was sufficient cause for the arbitrator to grant the continuance she requested, and (2) the arbitrator mistakenly believed the deadline to issue an award was October 10, 2024, when it was actually December 6, 2024. She primarily contends the error is subject to judicial review under section 1286.2, subdivision (a)(5). Section 1286.2, subdivision (a)(5), states in relevant part that a trial court shall vacate an arbitration award if it determines “[t]he rights of such party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown.” In the alternative, she contends the court erred when it failed to recognize that the arbitration award was procured by “undue means” and her rights were violated by “arbitrator misconduct” within the meaning of section 1286.2, subdivision (a)(1) and (a)(3). As a threshold matter, relying on section 1290, Rhymes asserts we must deem the allegations in the petition to vacate to be true because Permanente filed an untimely response to the petition. In response, Permanente does not argue that its response to the petition was timely, but it contends the trial court had discretion to consider it. Section 1290 provides: “The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed.” 10  We do not need to resolve this question because the parties’ dispute rests squarely on undisputed facts and we are called upon to consider only whether the legal conclusions drawn from those facts are sound. Under section 1290, “the allegations ‘deemed admitted,’ when a petition to vacate is not timely opposed, are only the factual allegations of the petition, not the legal conclusions pleaded. The admission of factual allegations does not require courts to grant an unopposed petition. Rather, courts still have the power and duty to draw their own legal conclusions and confirm, correct, or vacate the award, or dismiss the petition, as appropriate.” (Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal.App.4th 956, 962.) Explained another way, “only factual allegations, not legal conclusions, are deemed admitted by a failure to timely respond.” (Id. at p. 962.) Here, Permanente’s response to the petition to vacate did not dispute any of the factual allegations relevant to the issues raised by Rhymes on appeal. It argued that the legal conclusions she drew from those allegations were unwarranted. In addition, to support her factual allegations, Rhymes attached as an exhibit to her petition a complete transcript of the proceedings before the arbitrator. The parties do not dispute the authenticity of the transcript as a record of the events that occurred at the arbitration hearing when Rhymes asked for a continuance. We thus proceed to address Rhymes’s contention based on the undisputed procedural history before us. As noted, Rhymes’s primary contention is that vacatur is required under section 1286.2, subdivision (a)(5), because the arbitrator refused “to postpone the hearing upon sufficient cause being shown.” “[W]hen, as here, an arbitrator exercises discretion in denying a continuance request, there are two issues to be resolved in vacatur proceedings. First, the trial court must determine whether the arbitrator abused his or her discretion by refusing to 11 postpone the hearing upon sufficient cause being shown. Second, if there was an abuse of discretion, the trial court must determine whether the moving party suffered substantial prejudice as a result. [In addition], on appeal from [a] trial court’s order granting or denying a request to vacate the arbitration award, our review is de novo. . . . [I]n the face of disputed evidentiary matters, we apply the differential substantial evidence test.” (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1198 (SWAB).) Under the abuse of discretion standard of review, an adjudicator’s “findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712, fns. omitted.) Significant here, the rules of procedure apply equally to parties represented by counsel and those who represent themselves. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.) Although we appreciate the challenges of appearing as a self-represented litigant, Rhymes “is entitled to the same but no greater consideration than other litigants.” (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.) Rhymes contends the arbitrator abused his discretion because there was sufficient cause to grant the continuance she requested at the arbitration hearing. But this is not the question presented on review here. The question presented is whether the arbitrator abused his discretion because there was insufficient evidence to deny the continuance. (See Haraguchi, supra, 43 Cal.4th at pp. 711–712 [adjudicator’s “findings of fact are reviewed for substantial evidence”].) There was no such deficiency here. Rhymes appeared at the arbitration hearing without an expert witness that she concedes was necessary to prove her case in chief. She admitted that 12 she knew, one week before the hearing, that the expert witness she had designated in her untimely disclosure, Bentley, would not be appearing; yet she did not seek a continuance. She had failed to make Bentley available for deposition in response to Permanente’s timely deposition notice. And it was unclear whether she had ever actually retained Bentley to testify or was even in contact with her at the time of the hearing. In fact, Rhymes sought a continuance to either secure Bentley’s attendance or locate and retain another expert The excuses Rhymes gave—miscommunication with Bentley’s parent company, a collateral dispute with Permanente’s counsel about an alleged breach of privacy, and her pro se status—were not extraordinary nor even compelling reasons for her failure to prepare. The arbitration had been pending for 18 months. On these facts, we conclude the arbitrator’s exercise of discretion was well-supported. Rhymes contends in the alternative that vacatur was warranted under section 1286.2, subdivision (a)(5), because the arbitrator denied her request for a continuance under his mistaken assumption that the deadline to render the award was October 10, 2024, when it was actually December 6, 2024. An adjudicator “abuses its discretion when the factual findings critical to its decision find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) Here, while we accept that the arbitrator was mistaken about the deadline, we do not agree the mistake influenced the arbitrator’s exercise of discretion. As Rhymes acknowledges in her opening and reply briefs, although the arbitrator was mistaken about the deadline, he concluded after a brief recess that he could extend it and make the requested continuance work as a practical matter. As noted, the arbitrator attempted to obtain Permanente’s agreement to declare the case complex to allow “more 13 investigation and discovery and put the matter over for a month” with a new deadline, and to “give [Rhymes] an opportunity to get in touch with her witness” or find one ’[i]f she doesn’t have that witness.” Thus, although the arbitrator was mistaken about the deadline, the mistake was immaterial to his decision since he concluded it was no barrier to his ability to grant the continuance. He simply declined to grant a continuance on the basis there was no good cause. We thus conclude that there was no abuse of discretion despite the arbitrator’s mistake about the award deadline. Finally, we briefly address Rhymes’s contention that the arbitrator engaged in misconduct and the award was procured by undue means within the meaning of section 1286.2, subdivision (a)(1) and (a)(3). Significantly, “undue means” in this context “connotes behavior that is immoral if not illegal.” (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 825.) Our independent review of the entire transcript reveals nothing to support a finding of immoral behavior, illegal behavior, or any other misconduct by the arbitrator. 14  DISPOSITION The judgment is affirmed. Permanente is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) DO, J. WE CONCUR: MCCONNELL, P. J. KELETY, J. 15