Judge: Anne Hwang, Case: 19STCV07622, Date: 2023-09-28 Tentative Ruling

Case Number: 19STCV07622    Hearing Date: September 28, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Defendant Kaiser Foundation Health Plan, Inc.’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Greg Bunch

2.      Declaration of Timothy Everett  

3.      Separate Statement of Undisputed Facts

OPPOSITION PAPERS

1.      Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment

2.      Plaintiffs’ Request for Judicial Notice

3.      Declaration of Armand Kizirian

4.      Plaintiff’s Separate Statement of Disputed Material Facts

5.      Declaration of Armand Kizirian Requesting Continuance of Hearing

REPLY PAPERS

1.      Reply in Support of Motion for Summary Judgment; Declaration of Greg Bunch

2.      Reply to Plaintiff’s Separate Statement

3.      Reply in Opposition to Plaintiffs’ Request for Judicial Notice

BACKGROUND

            On March 4, 2019, Plaintiffs Edma Kizirian, Taline Boyamian, Armand Kizirian, and Estate of Sebouh Kizirian filed a complaint against Moving Defendant Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and various other medical providers for wrongful death, medical malpractice, and loss of consortium. The lawsuit stems from the death of Sebouh Z. Kizirian, who died on December 5, 2017 after receiving two surgeries to address a ventral hernia. On August 4, 2021, Plaintiffs filed a first amended complaint.

Defendant Kaiser Foundation Health Plan, Inc. (“Defendant” or “KFHP”) now moves for summary judgment arguing that as a health care service plan, it cannot be held vicariously liable for the alleged negligent acts or omissions of contracted health care providers.

Plaintiffs oppose, or in the alternative, seek to continue the hearing on this motion pursuant to Code of Civil Procedure section 437c(h).

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

JUDICIAL NOTICE

Plaintiffs request the Court take judicial notice of three documents pursuant to Evidence Code section 452(h). Although the documents are not properly judicially noticeable, the Court’s consideration of the documents does not change the rulings herein.

OBJECTIONS

            Plaintiffs object to each of Defendant’s material facts on the same grounds: “The proffered statement is vague, misleading, incomplete, and calls for a legal conclusion. The evidence cited does not support Moving Party’s Undisputed Material Fact. Plaintiffs object to the instant statements to the extent that it is conclusory, lacks foundation and calls for a legal conclusion.” Plaintiffs also cite to their Exhibits 1-3. The Court overrules Plaintiffs’ objections.

DISCUSSION

The Knox-Keene Act

The Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene) governs health care services in California. (Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248 Cal.App.4th 425, 430; see Health & Saf. Code § 1340 et seq.) Under the Act, a “health care service plan” is defined as “[a]ny person who undertakes to arrange for the provision of health care services to subscribers or enrollees, or to pay for or to reimburse any part of the cost for those services, in return for a prepaid or periodic charge paid by or on behalf of the subscribers or enrollees.” (Health & Saf. Cod, § 1345(f)(1).) Health care service plans “are not health care providers under any provision of law,” (Civ. Code, § 3428 (c)), but “may employ, or contract with, any professional” licensed in the state. (Health & Saf. Code § 1395 (b).) A “provider” is “any professional person, organization, health facility, or other person or institution licensed by the state to deliver or furnish health care services.” (Health & Saf. Code § 1345(i).)

“Knox-Keene bars claims against a plan for vicarious liability.” (Gopal v. Kaiser Foundation Health Plan, Inc., supra, 248 Cal.App.4th at 431.) “A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others.” (Health & Saf. Code § 1371.25.)

In Gopal, appellants did not dispute that Kaiser Foundation Health Plan, Inc., determined by the court to be a “health care service plan” within the meaning of Knox-Keene, had no direct involvement with Gopal’s care or “that section 1371.5 bars vicarious liability between health plans and providers. In an effort to avoid section 1371.5, however, appellants rely on an enterprise theory of liability, arguing that Health Plan, Kaiser Hospitals and SCPMG [Southern California Permanente Medical Group] constitute a single enterprise, and thus, Health Plan is liable for all acts and omissions of the other components of the enterprise. The trial court rejected this theory as a matter of law, and [the Court of Appeal agreed] that it fails.” (Gopal, 248 Cal.App.4th at 431.) The court concluded that as a matter of law, the two conditions generally required for the application of joint enterprise liability were inapplicable. (Id. at 432.) (See also Futterman v. Kaiser Foundation Health Plan, Inc. (2023) 91 Cal.App.5th 656, 667 (distinguishing between holding the health service plan vicariously liable for the acts of the medical groups, from claims that the plan itself does not provide coverage); Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390, 1404 (“section 1371.25 applies to prevent the Martins from holding PacifiCare vicariously liable for Bright’s acts or omissions. In other words, the liability remains with the party at fault and cannot be shifted to another by a statutory or common law liability theory or a contractual hold harmless provision.”).)

Here, Kaiser Foundation Health Plan, Inc. proffers the following facts:

-          On August 2, 2021, plaintiffs filed the operative First Amended Complaint in which they set forth specific allegations against the named physician defendants as well as against Kaiser medical staff. Plaintiffs then set forth the same contentions in their responses to special interrogatories. Plaintiffs make no specific allegations of negligence by Defendant Kaiser Foundation Health Plan, Inc. as a health care service plan in their First Amended Complaint or in subsequent discovery conducted to date. (UMF 1.)

-          Defendant is a health care service plan licensed by the California Department of Managed Health Care under the Knox Keene Health Care Service Plan Act of 1975. (UMF 2.)

-          Defendant is a non-profit, public benefit corporation that enrolls members, collects dues, and contracts with Permanente Medical Groups, Kaiser Foundation Hospitals, and affiliated providers to arrange for the provision of healthcare services for its members. In Southern California, Defendant contracts with Southern California Permanente Medical Group and Kaiser Foundation Hospitals to arrange for the provision of medical and hospital services to its members. (UMF 3.)

-          Defendant does not provide health care services, does not operate hospitals, does not render medical care or treatment, and does not direct or manage the provision of medical care or treatment. (UMF 4.)

-          All of the medical care and treatment of decedent was provided through his membership with Kaiser Foundation Health Plan, Inc., by physicians and staff of Southern California Medical Group and Kaiser Foundation Hospitals. Defendant did not provide medical care or treatment to the decedent at any time. (UMF 5.)

Defendant has established that it is a health care service plan under the Knox-Keene Act and thus, cannot be vicariously liable for the acts of providers. There is no allegation that Defendant was negligent. As a result, Defendant has met its burden to demonstrate that there are no triable issues of material fact.

Plaintiff argues the Defendant, Kaiser Foundation Hospitals, and Southern California Permanente Medical Group (SCPMG) operated as each other’s agents and are joint employers of the defendant physicians and part of an integrated enterprise. 

            Plaintiffs proffer the following facts:

-          Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc. also share the same corporate address and executive management team. (PDMF 2, 3, 4, 5.)

-          A recruitment page for physicians on Defendant SCPMG’s website states, “[w]e are an organization that is uniquely integrated and structured among three entities”. Moreover, this statement is followed by up a graphic illustrating that SCPMG is intrinsically tied to Defendant Kaiser Foundation Hospitals and Defendant Kaiser Foundation Health Plan, Inc. as the graphic displays icons representing the three entities connected by arrows pointing towards one another. (PUMF 2.)

-          The Statement of Information forms filed by Defendant KFHP and Kaiser Foundation Hospitals with the California Secretary of State list the same CEO (Gregory Adams), the same CFO (Kathryn Lancaster), and the same corporate Secretary (Vanessa Benavides), for both entities. In addition, the corporate office for both entities is listed as One Kaiser Plaza, Oakland, California 94612. Even an individual of the same name signed both Statement of Information forms – Hong-Sze Yu. (PUMF 3.)

Plaintiffs cite to cases generally discussing factors to be considered with regard to joint employment or an integrated enterprise. (Opp. at pg. 1.) However, Plaintiffs do not address the Court of Appeal’s decision in Gopal, nor cite to any case that authorizes a joint employment theory of liability notwithstanding the clear bar in Health and Safety Code section 1371.5. Accordingly, Plaintiffs have failed to meet their burden to establish a triable issue of fact.

In the alternative, Plaintiffs seek a continuance to depose Timothy P. Everett “on the topics he includes in his declaration,” and “seek to question Mr. Everett about his claims regarding the involvement of KFHP as to the decedent’s care, and its relationship with the other Defendants. These matters go to whether KFHP may be deemed to be an integrated enterprise or joint employer with the other Kaiser entities.” (Kizirian Decl. Req. Cont. ¶ 4-5.) As discussed, above, Plaintiffs have not established the relevance of any testimony regarding an integrated enterprise or joint employment. Even if an integrated enterprise were established, section 1371.5 bars vicarious liability between health plans and providers. Moreover, Plaintiffs have not shown diligence in seeking this testimony. Accordingly, the Court denies Plaintiffs’ request for a continuance. (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, (“The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion…. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist.” (Citations and quotations omitted.).)

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Kaiser Foundation Health Plan, Inc.’s Motion for Summary Judgment is GRANTED.

            Defendant shall provide notice of this ruling and file a proof of service of such.