Judge: Gregory Keosian, Case: 19STCV44154, Date: 2023-11-02 Tentative Ruling

Case Number: 19STCV44154    Hearing Date: November 2, 2023    Dept: 61

Plaintiff Jens Frederick Larsen’s Motion for Summary Judgment is DENIED.

Defendant to provide notice.

I.                   MOTION FOR SUMMARY JUDGEMENT

A party may move for summary judgment “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).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)  

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Code Civ. Proc. § 437c(p)(1).)  The defendant may not rely upon the mere 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 that cause of action or a defense thereto.  (Code Civ. Proc. § 437c(p)(1).)  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.)

Plaintiff Jens Frederick Larson (Plaintiff) seeks summary judgment as to his claims for medical negligence and dependent adult abuse. The motion is supported by the declaration of Plaintiff himself, who testifies concerning his experience with the nurses provided by Defendant Tender Home Health (Defendant) and his medical treatment during the relevant period. Plaintiff also presents a declaration from Dr. Omar S. Darwish, who testifies that Plaintiff’s pulmonary embolism could have been prevented had Defendant provided timely physical therapy. (Darwish Decl. ¶¶ 23–24.) Plaintiff also presents the declaration of Moshe Lewis, M.D., who opines that Defendant Tender Home Health failed to comply with the standard of care or the plans of care agreed to prior to Plaintiff’s discharge from the hospital in failing to provide timely physical therapy to Plaintiff and discharging him prematurely despite known risks. (Lewis Decl. ¶¶ 28–41.)

“The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach was the proximate or legal cause of the resulting injury.” [Citation.]” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, emphasis in original.)

In medical malpractice cases, expert testimony is required to prove or disprove compliance with the standard of care. (See Landeros v. Flood (1976) 17 Cal.3d 399, 410; Garibay, supra, 161 Cal.App.4th at p. 741.) On a summary judgment motion, expert testimony may be supplied through expert declarations, and summary judgment is proper if plaintiff fails to submit any opposing expert testimony. (See Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800; Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.) Expert declarations may be based on hospital and medical records if they are properly authenticated. (Garibay, supra, 161 Cal.App.4th at pp. 742–743.)

There is a flaw in Plaintiff’s motion that Defendant identifies in opposition. As noted above, Plaintiff’s claims require expert testimony for their vindication, and the medical records upon which that testimony is based must be authenticated. (Id. at pp. 742–743.) “Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule.” (Id. at p. 742.) That rule is set forth in Evidence Code § 1271, which states:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Here, Plaintiff presents the declarations of his experts without authenticating the medical records upon which they rely to come to their conclusions. His notice of lodging exhibits simply states that “a true and correct copy” of the given record is attached. Plaintiff in reply includes a new declaration attesting that he is the custodian of his own medical records, but provides no testimony concerning any the of criteria required by Evidence Code § 1271. Plaintiff’s expert declarations are therefore without an authenticated evidentiary basis.

The motion is therefore DENIED.

Defendants to provide notice.