Judge Deirdre Hill, Case 19STCV41599 2022-09-27 Tentative Ruling

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The court considered the moving, opposition, and reply papers. The court also considered the joinder by defendant Maria Tong.

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment. The request for joinder is GRANTED. Defendants are to submit a proposed judgment within ten days.

On November 19, 2019, Jen Tong, ind. and as successor in interest to Jong Hua Tong, filed a complaint against Bay Crest Care Center, LLC, ADBA Bay Crest Care Center, Genesis Healthcare, Inc., and Andrea Carlin for (1) negligence, (2) gross negligence, and (3) wrongful death.

On March 24, 2020, plaintiffs filed a FAC against Bay Crest Care Center, LLC, ADBA Bay Crest Care Center, Genesis Healthcare, Inc., Andrea Carlin, and Maria Y. Tong.

On May 29, 2020, Maria Y. Tong, ind. and as successor in interest to Jong Hua Tong, filed a cross-complaint against Bay Crest Care Center, LLC, ADBA Bay Crest Care Center, Genesis Healthcare, Inc., Andrea Carlin, and Jen Tong for (1) fraud, (2) negligence, (3) gross negligence, (4) wrongful death, and (5) loss of consortium.

On October 30, 2020, the court sustained cross-defendants Bay Crest Care Center and Andrea Carlin’s demurrer to the cross-complaint with leave to amend as to the 2^nd, 3^rd, and 4^th causes of action and sustained without leave to amend as to the 5^th cause of action.

On November 19, 2020, Maria Y. Tong filed a FACC for (1) fraud, (2) negligence, (3) gross negligence, and (4) wrongful death.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” 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.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “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 the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Defendants Bay Crest Care Center, LLC dba Bay Crest Care Center and Andrea Carlin request summary judgment on the FAC on the ground that no triable issue of material fact exists and defendants are entitled to judgment as a matter of law.

In the alternative, defendants request summary adjudication of the individual causes of action in favor of defendants and against plaintiffs Jong Hua Ton, by and through her successor in interest, Jen Tong, and Jen Tong.

In the FAC, plaintiff alleges that she is the surviving child and successor in interest of decedent Jong Hua Tong. FAC, ¶1. On July 3, 2019, Jen Tong filed a petition for temporary conservatorship of the person of her mother in case no. 19STPB06155. Id., ¶12. Jen Tong requested that the probate court appoint her to be in charge of her mother’s healthcare decisions. Id., ¶13. On July 5, 2019, Jen Tong’s sister, Maria Tong, filed a competing petition. Id., ¶15. On July 10, 2019, Jong Hua Tong, age 88, was admitted to the Bay Crest Care Center, a nursing facility. Id., ¶16. The court did not appoint Maria Tong as temporary conservator. Id., ¶17. Maria Tong nevertheless informed the Bay Crest staff that she was in charge of her mother’s welfare and healthcare decision. Id., ¶18. Jen Tong informed Bay Crest staff that Maria Tong had no court order, legal authority, or right to instruct nurses/doctors regarding Jong Hua Tong’s care. Id., ¶19. Upon the request and demand of Maria Tong, Bay Crest and Carlin stopped giving Jong Hua Tong her antibiotic and IV-fluid shots. Id., ¶20.

The FAC also alleges that Jen Tong informed defendants that Maria Tong was disobeying the doctor’s orders by feeding Jong Hua Tong and that defendants did nothing to stop Maria Tong from feeding her. Id., ¶¶21-22. On July 15, 2019, Maria Tong physically and verbally abused Jong Hua Tong in front of the Bay Crest nurses. Bay Crest was aware that Maria Tong had tied Jong Hua Tong to her wheelchair using bedsheets in her room for hours. Defendants did not take enough action to stop Maria Tong’s behavior. Id. ¶24. Numerous times, Jen Tong asked defendant Carlin to stop Maria Tong from feeding food to Jong Hua Tong through her mouth because she was “NOP” or nothing by mouth patient. Id., ¶28.

The FAC further alleges that on August 5, 2019, Jen Tong discovered Maria Tong feeding Jong Hua Tong by her mouth. Id., ¶29. On August 7, 2019, Bay Crest inexplicably turned off Jong Hua Tong’s feeding machine for ten hours. She had no food or water for ten hours, despite having a history of severe dehydration. Id., ¶30. On August 11, 2019, Jen Tong witnessed her mother struggling to breath. Jen Tong asked Bay Crest to do something to help her mother’s lungs, clear her mother’s mucus, and to stop feeding food into her mother’s mouth but no one listened to her. Id., ¶32. On August 12, 2019, Jen Tong informed Bay Crest that her mother’s legs were cold like ice and both of her arms were also freezing and that Jong Hua Tong’s eyes were popping out. A nurse left a message for the doctor and then she went home. Id., ¶33. Jong Hua Tong passed away on August 13, 2019. Id., ¶34.

The elements of medical malpractice are: “(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.” Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted). “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” Avivi, 159 Cal. App. 4th at 467.

Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 984-985 (citations omitted). An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999. “No health care provider shall be liable for professional negligence or malpractice for any occurrence or result solely on the basis that the occurrence or result was caused by the natural course of a disease or condition, or was the natural or expected result of reasonable treatment rendered for the disease or condition.” Civil Code §1714.8(a).

Defendants argue that no triable issue of material fact exists as to breach of duty and causation. Defendant presents the declaration of Sandra J. Higelin, RN who opines based on her review of the records and her education, training, and experience, to a reasonable degree of medical probability, there was no act or omission by defendant that caused and/or substantially contributed to the death of plaintiff. As stated in the death certificate, the immediate cause of her death was an acute myocardial infarction (heart attack) with an underlying condition of coronary artery disease. None of these causes of death can be attributed to alleged improper treatment of plaintiff at Bay Crest. No act or omission by the nursing and/or ancillary staff at Bay Crest caused or contributed to decedent’s decline or could be characterized as neglect. Sandra Higelin, RN decl., ¶32. She states that allegations of decedent’s health deteriorating was not the result of treatment at Bay Crest. Prior to admission at Bay Crest, decedent and her family received a palliative care consult at Providence Little Co. of Mary Medical Center on July 5, 2019, in which they declined hospice. Further, decedent maintained an Advance Directive of “Do Not Attempt Resuscitation/DNR.” Id., ¶35. She also opines that care planning was reasonable and appropriate and that decedent received appropriate care and treatment during her admission to Bay Care. “This includes appropriate assessments, treatment, and care by the nursing staff.” Id., ¶33. Decedent was receiving good care during her admission at Bay Crest. Id., ¶35.

Higelin also states that the records do not indicate there was a finding of elder abuse by Jen Tong or Maria Tong such that Bay Crest was required to prevent either from visiting decedent. She asserts that she saw no evidence in the records that Bay Crest failed a duty to prevent either sister from visiting decedent. Id., ¶36

Higelin further states that the allegations by plaintiff that Maria Tong was feeding decedent applesauce or crackers without the permission of Bay Crest staff and it caused significant harm to decedent lack support and is not related to decedent’s cause of death. Prior to admission at Bay Crest, decedent was diagnosed with severe profound oropharyngeal dysphagia such that decedent could not consume large portions of any solid foods to significantly affect her medical condition. While decedent was recommended NPO, Providence noted decedent was “Ok for puree for oral gratification (3-4 tsp bites/hr) and meds crushed in applesauce only.” Id., ¶34.

Defendants also present the declaration of Daniel J. Bressler, M.D. who opines that based on his review of the records, as well as his education, training, and experience, to a reasonable degree of medical probability, there was no act or omission by defendant that caused and/or substantially contributed to the death of plaintiff. To the contrary, her death was the direct result of the natural progression of her underlying medical condition and comorbidities, including a history of hypertensive heart disease. Despite appropriate medical care, decedent’s condition deteriorated as expected and eventually led to her death. As stated in the death certificate, the immediate cause of her death was an acute myocardial infarction (heart attack) with an underlying condition of coronary artery disease. None of these causes of death can be attributed to alleged improper treatment of plaintiff at Bay Crest. No act or omission by the nursing and/or ancillary staff at Bay Crest caused or contributed to decedent’s decline or could be characterized as neglect. Dr. Bressler decl., ¶30. He opines that decedent received appropriate care and treatment during her admission to Bay Crest. Id., ¶31. He also states that Maria Tong feeding decedent applesauce or crackers without permission of Bay Crest staff was completely unrelated to decedent’s death. Id., ¶32. Allegations of decedent’s health deteriorating was not a result of treatment at Bay Crest. Id., ¶33.

In opposition, plaintiff argues that the motion is premature and should be denied or continued because plaintiff has not yet retained an expert to address issues relating to the standard of care and defendants’ breach, or to conduct sufficient discovery into defendants’ digital records. Plaintiff’s counsel states in his declaration that plaintiff “will be required to submit expert testimony” and that plaintiff has diligently inquired regarding the availability of qualified experts but has not yet been able to retain an expert witness available to provide an opinion and testimony in this action. Counsel also states that additional discovery is needed from Bay Crest, including as it relates to the digital versions of the medical records. Thus, counsel states, “additional discovery is needed in connection with this case and until all of the discovery issues are resolved, facts essential to further justify opposition” to defendants’ motion “may exist but cannot, for the reasons stated, yet be presented by plaintiff.”

Plaintiff also argues that defendants have not met their burden, contending that the declarations in support are conclusory. In any event, plaintiff contends, plaintiff’s evidence to date establishes that triable issues of material fact exist.

In reply, defendants refute that the motion is premature. Defendants point out that the complaint was filed in November 2019 and that plaintiff has not propounded any additional discovery since October 21, 2021. Defendants argue that plaintiff has had ample time and opportunity to propound additional discovery and retain an expert witness. Further, defendants argue, plaintiff has failed to meet her burden of stating essential facts to justify a denial or continuance under CCP §437c(h).

Defendants also argue that their expert declarations are proper as they provided an extensive recitation of the facts leading up to their expert opinions and made references to the relevant facts that led to their expert opinions.

Under CCP §437c(h), “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

“A declaration in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.’ . . . ‘It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show “facts essential to justify opposition may exist.”’” Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 254 (citations omitted). See also A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal. App. 4th 349, 356-57 (“a continuance for the purpose of taking depositions was not warranted when the declaration submitted in support of the continuance did not “explain what efforts were made to the necessary depositions or why they could not have been taken earlier.”).

The court finds that plaintiff has not met her burden for a continuance. Counsel’s declaration is insufficient and does not explain what efforts were made to obtain discovery or an expert and why the discovery and expert could not have been obtained earlier.

The court finds that defendants have met their burden of showing that plaintiff cannot establish the elements for negligence. The burden shifts to plaintiff who fails to present substantial evidence to raise a triable issue of material fact. Defendants’ expert testimonies are uncontradicted by any competing expert testimony. Plaintiff did not file any objections to defendants’ experts’ declarations.

“Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” Rosencrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4^th 1072, 1082.

Plaintiff realleges the prior paragraphs and alleges that on July 10, 2019, Jong Hua Tong was admitted to Bay Crest Care Center for the purpose of non-hospice care. Defendants’ conduct constitutes a want of even scant care and an extreme departure from the ordinary standard of conduct in the context to the situation, and thus grossly negligent conduct resulted in Jong Hua Tong’s death. FAC, ¶44.

Defendants argue that no triable issue of material fact exists as to breach of duty, causation, and extreme conduct. Defendants contend that the FAC merely alleges ordinary negligence. Defendants assert that as argued above under the 1^st cause of action, plaintiffs cannot establish negligence.

Nurse Higelin opines that there were no instances of extreme departure from the ordinary standard of care or extreme conduct by any staff member of Bay Crest Care Center, including Andrea Carlin. Higelin decl., ¶32. See also evidence above under 1^st cause of action.

In opposition, plaintiff requests a continuance and argues that defendants have not met their burden. Plaintiff also requests leave to amend.

As stated above, the court finds that a continuance is not warranted. Further, defendants have met their burden. The burden shifts to plaintiff who has failed to provide substantial evidence to raise a triable issue of material fact. Plaintiff’s request to amend is improper.

“’The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.’” Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263 (citation omitted). To support a cause of action for wrongful death, a plaintiff must not only prove that the defendant was negligent, but that the negligence was the legal cause of any alleged injuries. A plaintiff in a medical negligence and wrongful death action must prove causation “within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396, 402 (citations omitted).

Defendants argue that no triable issue of material fact exists as to breach of duty and causation. Defendants contend that plaintiffs failed to establish that defendants were negligent or grossly negligent. See under the 1^st and 2^nd causes of action. Further, defendants argue that plaintiffs have failed to meet the heightened burden of “within a reasonable medical probability based upon competent medical testimony.” A mere possibility that (1) prohibiting either sister from visiting the decedent at the facility; (2) preventing Maria Tong from feeding the decedent by mouth; (3) preventing Maria Tong from pulling on her mother’s arm and yelling at her; and/or (4) preventing Maria Tong from tying her mother to a wheelchair could have prevented decedent’s death is insufficient to support the cause of action for wrongful death. Thus, defendants argue, they did not engage in any conduct that could have possibly caused or contributed to decedent’s death. See Dr. Bressler’s decl. where he opines that to a reasonable degree of medical probability, there was no act or omission by defendant that caused and/or substantially contributed to the death of decedent. Dr. Bressler decl., ¶30. He states that her death was the result of “the natural course of a disease or condition, or was the natural or expected result of reasonable treatment rendered for [her] disease or condition” for which defendants have no liability. See also Higelin decl., ¶32. See also death certificate stating cause of death was “an acute myocardial infarction with an underlying condition of coronary artery disease.”

In opposition, plaintiff requests a continuance and argues that defendants have not met their burden.

The court finds that a continuance is not warranted. Further, defendants have met their burden. The burden shifts to plaintiff who has failed to provide substantial evidence to raise a triable issue of material fact.

The essential elements of a cause of action for negligence are: (1) a legal duty to use due

care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the

resulting injury. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. The standard of care

applied an ordinary person is that of a reasonably prudent person under like circumstances. Coyle v. Historic Mission Inn Corp. (2018) 24 Cal. App. 5th 627, 640. The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury. Id. at 645.

Defendant argues that she is entitled to judgment as a matter of law. She asserts that when decedent vacated her home on June 29, 2019, she was in good health and spirits and suffered from no illnesses or ailments aside from high blood sugar, which was constantly monitored, treated, and kept in check by defendant, her sole caregiver for over ten years. She asserts that during the time which decedent resided at Bay Crest, whenever she visited her mother, defendant ensured that she followed all directions and orders of the staff and medical personnel. See Maria Tong decl.

In opposition, plaintiff argues the same as in her opposition to Bay Crest. She requests a continuance because she has not yet retained an expert or to conduct sufficient discovery into defendants’ digital records. Plaintiff also argues that defendant has not met her burden because Bay Crest’s expert declarations are conclusory. Plaintiff also contends that Maria Tong’s declaration is not a trained medical professional and therefore not qualified to render an opinion about the medical condition of decedent or the cause of decedent’s death.

Defendant asserts that plaintiff has not alleged and has not provided any evidence of “extreme conduct” and as argued above, plaintiff has not established ordinary negligence.

Defendant argues that plaintiff has not established underlying negligence to support a cause of action for wrongful death as she did not cause her mother’s death.

Because the court grants summary judgment as to defendants Bay Crest and Andrea Carlin and because defendant Maria Tong has filed a joinder, a separate statement of undisputed facts, and her declaration, the court GRANTS defendant Tong’s joinder. She joins in defendants’ motion, supra, which includes two expert declarations. Defendant Maria Tong is not required to submit separate expert declarations. Plaintiff has failed to provide substantial evidence with conflicting expert evidence.