Judge Ashfaq G. Chowdhury, Case Number: 21STCV27733, Date: 2023-09-29 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21STCV27733, Date: 2023-09-29 Tentative Ruling

Case Number: 21STCV27733 Hearing Date: September 29, 2023 Dept: E

Hearing Date: 09/29/2023 – 2:00pm

Case No: 21STCV27733
Trial Date: 09/30/2024

Case Name: PATRISIA LUNA, an individual, v. HUNTINGTON AMBULATORY SURGERY CENTER, LLC, a California Limited Liability Company; PADADENA HOSPITAL ASSOCIATION, LTD., a California Corporation; GEORGE TANG, M.D., an individual; AKASH AGARWALA, M.D., an individual; and DOES 1-50, inclusive

[TENTATIVE RULING ON MSJ]

RELIEF REQUESTED

Defendant, Pasadena Hospital Association, LTD, will move this Court for an order granting summary judgment in its favor on the Complaint.

The motion for summary judgment is based on the argument that there is no triable issue of material fact that Pasadena Hospital Association, LTD (PHA) was not negligent as it owed no duty to Plaintiff. Also, PHA argues that there is no triable issue of material fact that no act or omission by PHA caused or contributed to any injury claimed by plaintiff.

Accordingly, PHA argues, it is entitled to judgment as a matter of law pursuant to Code of Civil Procedure, Section 437c(b)(7)(c).

The Plaintiff has failed to oppose this motion.

For the reasons set forth below, the Court’s tentative is to GRANT the motion.

BACKGROUND
Plaintiff Patrisia Luna, filed a Complaint on 07/28/2021. The Complaint names four Defendants – (1) Huntington Ambulatory Surgery Center, LLC, a California Limited Liability Company, (Huntington) (2) PHA (Pasadena) (3) George Tang, M.D., an individual, and (4) Akash Agarwala, M.D., an individual.

Defendants Tang and Agarwala have been dismissed from this action: Dr. Tang was dismissed on 10/31/22, and Dr. Agarwala was dismissed on 6/20/23.

The Complaint alleges two causes of action: (1) Professional Negligence and (2) Negligent Hiring, Training, Supervision, and Retention. The first cause of action is alleged against all Defendants. The second cause of action is alleged against Defendants Huntington and PHA.

Plaintiff alleges that while she was a patient of and/or recipient of medical care from Defendants, Defendants breached their duty to provide skillful management of her health condition, including but not limited to failing to provide proper treatment and care following her surgery on July 30, 2021. Plaintiff alleges that this breach was below the standard of care.

The Complaint, the Court notes, is exceedingly broad and vague: It is unclear from the Complaint which defendant is alleged to have done what.

LEGAL STANDARD

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.) “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, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

CCP § 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if all the papers submitted 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. (CCP § 437c(c).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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 defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) 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, 166.)

ANALYSIS

First Cause of Action – Professional Negligence
In a medical-negligence action, a plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)

“ ‘The standard of care in a medical malpractice case requires that medical service providers exercise that… degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action…’ [Citation]” (Jameson v. Desta 215 Cal.App.4th 1144, 1171 citing Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108.)

As a general rule, the testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff's damages. (Flowers v. Torrance Memorial Hosp. Med. Ctr. (1994) 8 Cal.4th 992, 10001.) A narrow exception to this rule exists where “ ‘the conduct required by the particular circumstances is within the common knowledge of the layman.’ [Citations.]” (Ibid.) This exception is, however, a limited one. It arises when a foreign object such as a sponge or surgical instrument, is left in a patient following surgery and applies only when the plaintiff can invoke the doctrine of res ipsa loquitur. (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.)

Duty
PHA attacks the element of duty in the first cause of action. Defendant argues it is undisputed that PHA did not owe the Plaintiff a duty with respect to her claim of medical negligence arising out of the discharge and transfer of the Plaintiff from Huntington.

PHA submitted the declaration of Diana Unti who is the Risk, Claims, and Insurance Liaison for Pasadena. Unti’s declaration stated that she had personal knowledge of the facts contained herein, and that she could and would testify to them if asked to do so.

The Unti declaration states as follows:

2. I am aware and am informed that this case arises from a fall by the patient, Patrisia Luna, at the time of her discharge from Huntington Ambulatory Surgery Center, LLC, on or about July 30, 2020.

3. Pasadena Hospital Association, LTD did not employ or otherwise control the actions, decisions, or judgment of Huntington Ambulatory Surgery Center, LLC, or any individual who provided care and treatment to the patient, Patrisia Luna, at Huntington Ambulatory Surgery Center, LLC, on July 30, 2020.

4. Pasadena Hospital Association, LTD did not control the operations of Huntington Ambulatory Surgery Center, LLC on July 30, 2020.

5. Pasadena Hospital Association, LTD did not have any financial or contractual agreements for the services provided to the patient, Patrisia Luna, at Huntington Ambulatory Surgery Center, LLC, on July 30, 2020.

(Decl. Unti. ¶¶2-5.)

PHA is in effect saying it had nothing to do with the alleged injury in this case.

In response, Plaintiff has filed nothing and said nothing.

It appears to the Cout that PHA has met its initial burden as to the question of duty. If there are indeed facts in issue the Court does not know because Plaintiff has chosen not to file any opposition to this motion.

Causation
Defendant also negates the element of causation. With its unrebutted evidence.

Second Cause of Action: Negligent Hiring, Supervision, and Retention
The Court understands that PHA is stating that it had no role or duty with regard to the operative event in this case. Plaintiff’s failure to file an Opposition leaves the Court without any way to know if there is a dispute of material fact as to this question. It appears that PHA has carried its burden on this cause of action as well.

TENTATIVE RULING

Defendant’s motion for summary judgment is GRANTED as to all causes of action.

The Court again notes that the Plaintiff has, to date, offered no opposition to this motion. The Court is left to try to determine whether there is any triable issue of fact here with declarations and arguments from only one side. It would seem to be a rare situation where an unopposed motion such as this one should be denied.

If the Plaintiff was not served with this motion, that issue should be raised at the hearing. In the absence of such an issue, the Court is inclined to conclude that the Plaintiff has waived any objections to the motion being granted. (See Kelly v. Liddicoat (1939) 35 Cal.App.2d 559, 565 [trial court correctly granted unopposed summary judgment motion; defendants’ “failure to file affidavits or otherwise oppose the [summary judgment] motion indicates that they were utterly unable to make the showing of a substantial and meritorious defense as required by [CCP] section 437c” and “ ‘having failed to do this the trial court justly concluded that there was no defense to the action’ ”].)

“A party who fails to raise an issue in the trial court has ... waived the right to do so on appeal.’ ” (Jensen v. Superior Court (2021) 64 Cal.App.5th 1003, 1013.)