Judge: Andrew E. Cooper, Case: 23CHCV00093, Date: 2024-03-15 Tentative Ruling

Case Number: 23CHCV00093    Hearing Date: March 15, 2024    Dept: F51

Dept. F-51

Date: 3/14/24

Case #23CHCV00093

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION FOR SUMMARY JUDGMENT

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Motion Filed: 12/19/23                                                                                  Jury Trial: 6/24/24

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MOVING PARTY: Defendant Facey Medical Group (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Karey Kibbe; and Brian Kibbe (collectively, “Plaintiffs”)

NOTICE: OK¿ 

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RELIEF REQUESTED: An order granting summary judgment or, in the alternative, summary adjudication in favor of Moving Defendant and against Plaintiffs.

TENTATIVE RULING: The motion is denied.

BACKGROUND¿ 

Plaintiffs allege that on 1/14/22, plaintiff Karey Kibbe (“Karey”) sustained injuries from a slip-and-fall while attending an annual gynecology examination at Moving Defendant’s medical facility in Valencia, CA. (Compl. ¶¶ 14–15.) Plaintiffs allege that Karey’s injuries were caused by Defendants’ “failure to provide a step, step stool or similar equipment, device or mechanism, assistive devices and/or assistance to aid Plaintiff to safely get on and/or off of the exam table.” (Id. at ¶ 15.)

On 1/12/23, Plaintiffs filed their complaint against Moving Defendant and nonmoving defendants Jessica E. Murphy, M.D. (“Dr. Murphy”) and Providence Health Services (“Providence”), alleging the following causes of action: (1) Medical Negligence (by Karey against all Defendants); (2) Premises Liability (by Karey against Facey and Providence); and (3) Loss of Consortium (by plaintiff Brian Kibbe against all Defendants). 

On 12/19/23, Moving Defendant filed the instant motion for summary judgment. On 2/27/24, Plaintiffs filed their opposition. On 3/8/24, Moving Defendant filed its reply.

ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.) 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.)  

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) 

A.    Medical Negligence

Plaintiff’s first cause of action alleges Medical Negligence against all Defendants. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

Here, Moving Defendant alleges that “because Defendants complied with the standard of care in the … treatment of plaintiff and did not cause plaintiff any harm, negligence cannot be proven.” (MSJ 8:26–28.) In support of its contention, Moving Defendant proffers the sworn declaration of its expert, a licensed obstetrician-gynecologist, stating that “Dr. Murphy acted within the standard of care when she prescribed Clobetasol to plaintiff. Further, there is no objective medical evidence to support plaintiff’s allegations that any injuries she sustained were caused by Dr. Murphy. Thus, it is Dr. Macer’s opinion, to a reasonable degree of medical probability, that no negligent act or omission caused or contributed to any of the plaintiff’s alleged injuries.” (Id. at 8:16–20, citing Decl. of James Macer, M.D., ¶¶ 14–15.)

However, as Plaintiffs observe in opposition, “Plaintiffs are not claiming negligence with respect to the Clobetasol prescription. This case is about the failure to provide a step stool or other assistance to Karey to get down off an examination table.” (Pls.’ Opp. 8:7–9.) Plaintiffs further contend that therefore, “here, FACEY has not met its initial summary judgment burden because the Declaration of their expert, Dr. Macer, upon which this motion rests, is conclusory and fails to address the facts and evidence giving rise to this litigation, namely that Plaintiff, who is only 4’11” tall, fell off of an exam table for which there was no step stool for her to use, and for which no assistance was provided to her to get down from the exam table or to retrieve her phone.” (Id. at 11:15–19.)

Plaintiffs further argue that even if the Court were to find that Moving Defendant met its initial burden to present facts to negate an essential element of Plaintiffs’ Medical Negligence cause of action, a triable issue of material fact would exist as to whether Defendants met the correct standard of care. Based on Plaintiffs’ expert’s declaration, “the standard of care required that Dr. MURPHY either get the Plaintiff’s purse and hand it to the Plaintiff while the Plaintiff remained seated on the examination table, ask permission of the Plaintiff to obtain the Plaintiff’s phone from her purse and then obtain the phone and hand it to Plaintiff while the Plaintiff remained seated on the examination table, or last to pull out the step from the examination table and direct the Plaintiff to get down off of the table using the step.” (Id. at 10:9–13, citing Decl. of Howard C. Mandel, M.D., ¶ 18.)

On reply, Moving Defendant concedes “that the Declaration of Howard Mandel, M.D. creates a disputed issue of material fact regarding the first cause of action for medical negligence.” (Def.’s Reply 1:25–27.) Based on the foregoing, the Court agrees with Plaintiffs and finds that triable issues of material fact exist as to the applicable standard of care Defendants owed to Karey, and whether Defendants breached their duty of care to her. Accordingly, the motion is denied as to Plaintiffs’ first cause of action.

B.     Premises Liability

Plaintiffs’ second cause of action alleges Premises Liability against Facey and Providence. “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “Consequently, landowners are liable for injuries caused by a lack of due care in the maintenance of their property.” (Jones, 39 Cal.App.5th at 1207.)

1.      Foreseeability

“In determining a duty’s existence and scope, our precedents call for consideration of several factors: [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 79–80 [internal quotations omitted].) “Foreseeability is a critical factor in determining the existence of a duty.” (McGarry v. Sax (2008) 158 Cal.App.4th 983, 997.)

Here, Moving Defendant argues that “plaintiff cannot offer any evidence to show that Facey Medical Group should have foreseen or anticipated that plaintiff would become injured when getting off an examination table to retrieve her phone.” (MSJ 9:26–28.) Plaintiffs argue in opposition that they are not required to produce such evidence, because Moving Defendant has failed to meet its initial burden as to this issue by failing to present any evidence to support its argument. (Pls.’ Opp. 16:16–18.)

The Court agrees with Plaintiffs, and finds that as to the foreseeability issue, Moving Defendant has failed to proffer any supporting “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc. § 437c, subd. (b)(1).) Accordingly, the Court finds that Moving Defendant has failed to meet its initial burden as to the foreseeability of harm to Karey.

2.      Professional Negligence

Moving Defendant further argues that Plaintiffs’ premises liability cause of action amounts to a professional negligence cause of action, because “plaintiff’s claim arises out of and is integrally related to the rendering of professional medical services.” (MSJ 10:26–27.) Moving Defendant cites to Mitchell v. Los Robles Regional Medical Center (2021) 71 Cal.App.5th 291, wherein the Court of Appeal reviewed the distinction between “between the professional obligations of hospitals in the rendering of medical care to their patients and the obligations hospitals have, simply by virtue of operating facilities open to the public, to maintain their premises in a manner that preserves the well-being and safety of all users” for purposes of determining the applicable statute of limitations. (71 Cal.App.5th at 297.) In doing so, the Court of Appeal found that the hospital nursing staff’s decision to not assist the plaintiff patient in walking to the restroom was integrally related to her medical care and treatment. (Id. at 297–299.) Therefore, the Court of Appeal found that the patient’s action against the hospital to recover for injuries she sustained when she fell while walking to restroom while being treated in emergency room was subject to one-year limitations period for medical professional negligence claims, despite the patient’s contention that helping someone walk to and from toilet was not professional medical service. (Id. at 299.)

Moving Defendant argues that here, “Plaintiffs have not, and cannot, show that plaintiff’s injuries occurred outside the course of medical services or care and treatment.” (MSJ 10:27–28.) “Plaintiff’s injuries were integrally related to the care and treatment that Dr. Murphy was providing to plaintiff at Facey Medical Group” (Id. at 11:6–7.) Plaintiffs argue in opposition that “the absent step stool was merely incidental to [Karey’s] treatment but not required for addressing menopausal symptoms.” (Pls.’ Opp. 17:4–5.) Plaintiffs further observe that Moving Defendant has failed to meet its initial burden as to this issue because it has failed to present any evidence to support its argument. (Pls.’ Opp. 16:5–7.)

The Court agrees with Plaintiffs and finds that as to the issue of whether Plaintiffs’ premises liability claims amount to a professional negligence cause of action, Moving Defendant has failed to proffer any supporting “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc. § 437c, subd. (b)(1).) Accordingly, the Court finds that Moving Defendant has failed to meet its initial burden as to this issue.

Based on the foregoing, the Court finds that Moving Defendant has failed to meet its initial burden of proof to negate an essential element of or establish a complete defense to Plaintiffs’ Premises Liability cause of action. Moreover, as outlined above, the Court finds that a triable issue exists as to whether Karey’s injuries were caused by Defendants’ medical negligence. Accordingly, the motion is denied as to Plaintiffs’ second cause of action.

C.    Loss of Consortium

Plaintiffs’ third cause of action alleges against Defendants a Loss of Consortium on behalf of plaintiff Brian Kibbe (“Brian”). “To recover for loss of consortium, the plaintiff must plead and prove that his or her spouse suffered a negligently or intentionally inflicted injury which caused the loss of consortium.” (Cal. Civ. Prac. Torts § 10:6.)

Here, Moving Defendant argues that “because plaintiff Karey Kibbe’s claims must fail for the reasons set forth above, Brian Kibbe’s derivative claim for loss of consortium must also fail.” (MSJ 11:22–24.) The Court finds that to the extent that Moving Defendant contends that Plaintiffs’ third cause of action fails because it is derivative of Plaintiffs’ first and second causes of action, Moving Defendant’s argument lacks merit. As outlined above, the motion is denied as to Plaintiffs’ first and second causes of action and is therefore likewise denied as to Plaintiffs’ derivative Loss of Consortium cause of action.

CONCLUSION

 The motion is denied.