Judge Donald F. Gaffney, Case Stewart v. Main Street Specialty Surgery Center 2023-05-24 Tentative Ruling

Judge: Donald F. Gaffney, Case: Stewart v. Main Street Specialty Surgery Center, Date: 2023-05-24 Tentative Ruling

TENTATIVE RULING:

For the reasons set forth below, Defendant Robert Hanna, M.D.’s unopposed Motion for Summary Judgment is GRANTED.

Defendant Steve Mora, M.D.’s Motion for Summary Judgment was withdrawn on May 2, 2023 (ROA #76).

“The purpose of the law of summary judgment 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.) “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.” (Code Civ. Proc., § 437c, subd. (a)(1)^{^[1]}.) “The motion for summary judgment 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 a judgment as a matter of law. 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.” (§ 437c, subd. (c).)

“First, and generally, from commencement to conclusion, the 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.” (Aguilar, supra, 25 Cal.4th at p. 850.) “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.” (Ibid.)

“Second, and generally, the 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.” (Aguilar, supra, 25 Cal.4th at p. 850; § 437c, subd. (p)(1) [plaintiff meets its burden by proving each element of its cause of action].) Unless the moving party meets its initial burden, summary judgment cannot be ordered, even if the opposing party has not responded sufficiently, or at all. (Vesely v. Sager (1971) 5 Cal.3d 153, 169-170, superseded by statute on another point, as noted in Ennabe v. Manosa (2014) 58 Cal.4th 697, 701, 707; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73, fn. 4.)

A cause of action for medical negligence is the same as a claim for medical malpractice. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) “‘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.’ [Citation.]” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968; accord, Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

Negligent conduct is that “‘which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ [Citation.]” (Flowers, supra, 8 Cal.4th at p. 997.) As noted, “one of the essential elements of a cause of action for medical malpractice is ‘a proximate causal connection between the negligent conduct and the injury.’ [Citation.] ‘The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.’ [Citation.]” (Lattimore, supra, at p. 970.)

In support of his unopposed motion for summary judgment, Dr. Hanna presents the declaration of his expert, William Mazzei, M.D., who is board-certified in anesthesiology. (Cal. Code Civ. Proc., § 437, subds. (b)(1), (d); Evid. Code, §§ 801, 802.) In Dr. Mazzei’s opinion, Dr. Hanna’s treatment and care of Plaintiff Erryn Stewart, which was limited to serving as Ms. Stewart’s anesthesiologist, met the applicable standard of care. It is also Dr. Mazzei’s opinion any negligent act or omission on the part of Dr. Hanna did not cause or contribute to Ms. Stewart’s injuries. (Material Fact nos. 1-22, 23-44: Declaration of William Mazei, M.D., ¶¶ 5-26; Exhibits A-E to Mazzei Declaration.)

Based on the foregoing, Dr. Hanna has met his burden of persuasion and production that there is no triable issue of material fact as to either cause of action. (See Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067 [where there is no cause of action in tort, spouse has no cause of action for loss of consortium]; see Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 [cause of action for loss of consortium dependent on existence of cause of action for tortious injury to spouse, and “it stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable tortious injury”]; see Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315-1316 [loss of consortium claim can only be maintained if spouse’s cause of action is successful].)

Since Plaintiffs have indicated they do not oppose the MSJ, they have not met their own burden of production of making a prima facie showing of the existence of a triable issue of material fact.

Moving party to give notice.