Judge: Daniel M. Crowley, Case: 20STCV35245, Date: 2022-08-25 Tentative Ruling

Case Number: 20STCV35245    Hearing Date: August 25, 2022    Dept: 28

Defendant City of Burbank’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On September 15, 2020, Plaintiff Patrick Kimball (“Plaintiff”) filed this action against Defendants City of Burbank (“City”) and Martin John Diekhoff (“Diekhoff”) for motor vehicle negligence and general negligence.

On August 11, 2021, Plaintiff filed the FAC.

On December 15, 2021, Plaintiff filed the SAC, adding causes of action for Gross Negligence and Violation of Govt. Code §815.2.

On March 10, 2022, the City filed an answer.

On June 9, 2022, the City filed a Motion for Summary Judgment to be heard on August 25, 2022. On August 15, 2022, Plaintiff filed an opposition. On August 19, 2022, the City filed a reply.

Trial is currently set for February 7, 2023.

PARTY’S REQUESTS

The City requests the Court grant summary judgment as there are no triable issues of material fact.

Plaintiffs request the Court deny the motion.

OBJECTIONS

The City:

Sustained: 3, 4, 5, 7, 8, 9, 10, 11, 12, 13

Overruled: 1, 2, 6

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.) CCP Section 437c(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, 67, 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. (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.)

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, 166.)

Government Code § 815.2 provides “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

In a medical malpractice action, the 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. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)  If a defendant in a medical malpractice action moves for summary judgment and supports its motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.  (Id.)

Certified emergency medical technicians are immune from civil liability arising out of their conduct in treating injured persons at the scene of an emergency unless they perform acts or omissions in a grossly negligent manner or in bad faith. (Health & Saf. Code, § 1799.106.)  Gross negligence is the want of even scant care, or an extreme departure from the ordinary standard of conduct.  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.  The Court may determine whether acts or omissions rise to the level of gross negligence as a matter of law.  (City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999, 1007.)

DISCUSSION

Plaintiff claims he fell from his motorcycle.  City’s paramedics who were dispatched to the scene.  Plaintiff alleges that they failed to properly evaluate and care for Plaintiff. Plaintiff alleges that City’s paramedics only performed a visual examination and ignored Plaintiff’s request for help, resulting in his falling to the ground when he lost consciousness. As a result of this fall, Plaintiff broke multiple teeth and sustained a maxilla fracture.

The City argues that Plaintiff cannot establish that its paramedics were grossly negligent in their treatment of him.  The City argues that paramedics provided a quick, careful and appropriate response. 2 paramedics and three fire personnel applied their training and attended to Plaintiff based on a health evaluation at the scene. They noted he could walk unassisted, scored a perfect score on the Glascow Coma Scale, recorded he had no underlying medical conditions or spinal injuries, and took his blood pressure, pulse, respiration rate and oxygen saturation. (SSUMF 4-8.) Paramedics encouraged him to go to a trauma center, but Plaintiff indicated he did not want to go to the hospital, and even went so far as to sign an Against Medical Advice Form. (SSUMF 10.)

The Court cannot determine from this whether the City’s paramedics acted reasonably.  First, the City has offered no expert declaration to establish that its personnel’s conduct met the applicable standard of care.  This case is different from the City of Santa Cruz case cited above in that there, the issue was whether the defendant’s lifeguard’s failure to respond for twenty minutes to the plaintiff after the plaintiff dove into a river and injured himself was grossly negligent.  The Court of Appeal held that, under the circumstances presented to the trial court, the trial court was correct in determining the issue as a matter of law.  City of Santa Cruz v. Superior Court  (1988) 198 Cal.App.3d 999, 1007.)  Here, the Court has no basis for determining whether the paramedics actions were negligent or grossly negligent.  The Court has no foundation for making such a decision, which requires medical expertise.

CONCLUSION

Defendant City of Burbank’s Motion for Summary Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.