Judge: H. Jay Ford, III, Case: 20STCV48647, Date: 2022-08-01 Tentative Ruling

Case Number: 20STCV48647    Hearing Date: August 1, 2022    Dept: O

Case Name:  Bertranou, et al. v. Ehrlich, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Defendants The Regents of the University of California, Richard M. Ehrlich, MD and Mark S. Litwin, MD

RESP. PARTY:         Plaintiff Patrick Bertranou

TENTATIVE RULING

            Defendants The Regents of the University of California, Richard M. Ehrlich, MD and Mark S. Litwin, MD’s Motion for Summary Judgment, or in the alternative Summary Adjudication is DENIED.

I.  1^st cause of action for medical negligence—DENY

            A.  Applicable Law

            The elements of a medical malpractice cause of action 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.  See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4^th 463, 468 fn 2. 

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.  See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.  “The standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.  The test for determining familiarity with the standard of care is knowledge of similar conditions.  Geographical location may be a factor considered in making that determination, but, by itself, does not provide a practical basis for measuring similar circumstances.”  See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.

Whether the standard of care in the community has been breached presents a basic issue of fact in a malpractice action which can only be proved by expert opinion testimony unless the medical question is within the common knowledge of laypersons.  Id.; see also 1 Witkin, Cal. Evid., supra, Opinion, § 86, p. 631.  “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.”  See Golden Eagle Refinery Co., Inc. v. Associated Intern. Ins. Co. (2001) 85 Cal.App.4th 1300, 1315 (citing See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524).  Accordingly, where a plaintiff provides proper opposing expert testimony via a declaration, a triable issue of material fact is raised which precludes summary judgment.  Jambazian, supra, 25 Cal.App.4th at 844.  The absence of opinion evidence on this issue is fatal to the plaintiff’s cause of action.  Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.  An expert declaration is admissible if Defendants’ expert states in detail his qualifications and the factual basis for his opinion.  See generally Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524. 

Expert testimony is also required to establish the element of causation in a medical malpractice action.  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical probability and a medical possibility needs little discussion. There can be many possible causes, indeed, an infinite number of circumstances that can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.”  Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (trial court properly struck medical expert testimony on issue of causation where expert’s opinion failed to provide a reasoned explanation regarding the etiology connecting plaintiff’s infected subcutaneous tissue to the nidus inside peritoneal cavity where retractor was retained). 

B.  Triable issues of fact remain as to causation

Defendants move for summary adjudication of the 1^st cause of action for medical malpractice based on the element of causation.  Defendants rely on the expert declaration of Evan Yu, MD. 

The separate statement does not set forth any material facts pertaining to causation nor does it reference Yu’s declaration.  Plaintiff argues the court must disregard Yu’s evidence as a result of the “Golden Rule” of summary judgment.  “This is the Golden Rule of Summary Adjudication:  If it is not set forth in the separate statement, it does not exist”.  See United Comm. Church v. Garcin (1991) 231 Cal.App.3d 327, 337. 

However, numerous courts have found declined to follow the “Golden Rule” as an absolute.  Under this authority, the court may disregard evidence not included in the separate statement in its discretion.  See San Diego Watercrafts, Inc. v. Wells Fargo Bank, NA (2002) 102 Cal.App.4^th 308, 313 (citing CCP §437c(b) and declining to adopt absolute rule that evidence outside of separate statement must be disregarded (“Golden Rule”) or rule that a court must consider all evidence submitted in connection with a summary judgment motion); Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5^th 171, 182-183 (appellate court exercised discretion to consider evidence outside of separate statement where the record was “not large and there are only a few key documents). 

            There is only one expert declaration submitted in support of the MSJ.  Defendants identify that evidence for the Court and the record is not voluminous.  Under these circumstances, the Court exercises its discretion to consider Dr. Yu’s expert declaration and overrules Plaintiff’s objection based on the Golden Rule. 

            According to Dr. Yu, nothing Defendants did or did not do resulted in injury or damage to Plaintiff.  See Defendants’ Evidence in Support of MSJ, Ex. 1, Dec. of E. Yu, ¶18.  Yu opines that the earliest Plaintiff’s cancer could have been diagnosed was August 2019.  Id. at ¶19.  Plaintiff was diagnosed with cancer in March 2020.  Id. at ¶20.  Yu testifies that the 7-month delay in diagnosis did not affect his long-term prognosis or outcome.  Id. at ¶27.  Yu testifies that the only injuries Plaintiff could have suffered due to the delay in diagnosis relates to the scope of the medical treatment he underwent to treat the cancer.  Id. at ¶28.  Yu testifies that no one can establish to a reasonable degree of medical probability by anyone that chemotherapy and bladder removal would have been avoided had Plaintiff’s cancer been diagnosed in August 2019.  Id.

            In response, Plaintiff submits the declaration of Dr. Rakesh Patel, a Florida-trained and certified urologist.  Dr. Patel opines that, to a reasonable degree of medical certainty, it is more likely than not that Bertranou would not have had to undergo chemotherapy or removal of his bladder and prostate if his bladder cancer had been detected in April 2019 or even August 2019.  See Plaintiff’s Compendium of Evidence in Opposition, Ex. B, 13:9-21.  Patel opines that, due to the 7 to 11 month delay in diagnosis, Plaintiff was required to undergo four rounds of chemotherapy and surgical removal of his bladder and prostate, making it more likely that Plaintiff will suffer stress urinary incontinence, erectile dysfunction and systemic recurrence of bladder cancer.  Id.  Patel opines that treatment would have been limited to bladder tumor resection and intravesical immunotherapy.  Id. 

            Triable issues of fact remain as to whether Defendants caused Plaintiff’s alleged injuries, which includes having to undergo more extensive treatment than if he had been diagnosed earlier.  Yu opines that causation cannot be established to a reasonable degree of medical probability.  Plaintiff responded with a declaration for Dr. Patel attesting to precisely that.  Defendants’ Motion for Summary Judgment or Adjudication of the 1^st cause of action for medical malpractice is DENIED. 

II. 3^rd cause of action for false advertising—DENY

            A.  Applicable Law

“It is unlawful for any…corporation or association…thereof with intent directly or indirectly…to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated…any statement, concerning…those services…or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading….”  Bus. & Prof. Code, § 17500.

            “California’s false advertising law bars ‘any advertising device ... which is untrue or misleading.’ (Bus. & Prof. Code, § 17500.)  Because this law and the fraudulent prong of the Unfair Competition Law substantively overlap, the plaintiff's burden under these provisions is the same: To prevail on a claim under the false advertising law, she must show that members of the public are likely to be deceived and must do so as adjudged through the eyes of the reasonable consumer.”  Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1136 (“No Sugar Added” label was not deceptive advertising as a matter of law).  

            “Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires consideration and weighing of evidence from both sides and which usually cannot be made on demurrer.”  Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 134–135 (“where a UCL action is based on contracts not involving either the public in general or individual consumers who are parties to the contract, a corporate plaintiff may not rely on the UCL for the relief it seeks”).  However, a court can sustain a demurrer to a false advertising claim where no reasonable consumer would be deceived by the advertisement in the manner alleged by the plaintiff.  See Schaeffer, supra, 44 Cal.App.5^th at 1136 (no reasonable consumer would infer from “No Sugar Added” label on defendant’s juicebox to mean that all other competitor products contained sugar).  An implied representation is actionable under B&PC §17500 only if a reasonable consumer is likely to infer that representation from the advertisement.  Id. 

            B.  Plaintiff’s Allegations

            Plaintiff’s 17500 claim is based on the following advertisement:  “By teaming with other partners such as the UCLA School of Engineering, other departments within the UCLA medical school and private industry, our faculty members are pioneering new methods of delivering care, making it less invasive, more effective and less costly than traditional modes of care. From the simplest conditions to the most complex, so acclaimed are our urology programs that for the 14^th year in a row, U.S. News & World Reports has ranked the UCLA Department of Urology within the top five in the nation, and #1 on the West Coast for urology care.”  See Complaint, ¶26.

            Plaintiff claims that members of the public would be likely deceived by this advertising, because it “implies that, not only are UCLA’s urologists licensed, experienced, competent, skillful and caring, but they are at the top of their field….”  Plaintiff alleges that UCLA’s healthcare providers are in reality “negligent, incompetent, lacking customary skills, short staffed, underfunded, lackadaisical about employing protocols, more interested in saving money than saving lives, among the worst in the country and among the worst on the West Coast.”  Id. at ¶27.   

            C.  Defendants fail to negate any element of Plaintiff’s 17500 cause of action

            Defendants argue Plaintiff cannot establish a 17500 False Advertising Claim based solely on his individual experience with UCLA Urology.  Defendants argue Plaintiff has no evidence to stablish that the advertisement was false or misleading. 

            As the moving party, Defendants have the initial burden of either presenting evidence affirmatively rebutting Plaintiff’s allegations or evidence that Plaintiff lacks evidence on an essential element of the claim.  See Union Bank v. Supr. Ct. (1995) 31 Cal.App.4^th 574, 590.  For this reason, a defendant does not meet its burden under CCP §437(c)(o)(1) by merely “pointing out” or “arguing” that the plaintiff does not possess or cannot reasonably obtain necessary evidence. Id.; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response).  Id.

            A defendant may rely upon a plaintiff’s factually devoid responses to establish that plaintiff does not possess and cannot reasonably obtain necessary evidence.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590. For example, in Union Bank, plaintiff sued defendants for various fraud claims. Defendants moved for summary judgment based on plaintiff’s responses to three RFAs and the accompanying Form Rog 17.1. Plaintiff refused to admit that Defendants (i) did not commit fraud against Plaintiff or (ii) that Defendants did not conspire to defraud Plaintiff.  Id. at 578. In connection with form rog 17.1 plaintiff could cite to no evidence or facts supporting their refusal to admit either of these facts.  Id.  Compounding the damaging effect of these factually devoid responses was plaintiff’s admission that defendant “took no inappropriate action in connection with its role in the transactions.”  Id.  The combination of these facts sufficiently met defendant’s moving burden.  Id. at 592. Due to plaintiff’s admission that defendants did not engage in any “inappropriate action,” plaintiff failed to raise a triable issue of fact based on evidence that potentially raised a reasonable inference of fraud.  Id. at 593.

            Defendants’ Separate Statement is procedurally defective for adjudication of Plaintiff’s individual causes of action.  The Separate Statement does not segregate the material facts by cause of action to be adjudicated.  On a motion for summary adjudication, the statement must tie each undisputed material fact to the particular claim, defense or issue sought to be adjudicated: “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  CRC 3.1350(b).  The Court is therefore forced to surmise which facts pertain to which causes of action.  Failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court's discretion.  CCP §437c(b)(1); see Wilson v. Blue Cross of Southern Calif. (1990) 222 Cal.App.3d 660, 671.

            In support of each material fact, Defendants cite to the entirety of Exhibits B and C without any specific reference.  Exhibit B is Plaintiff’s medical records.  Exhibit C is the deposition transcript of Plaintiff.  Both exhibits are voluminous.  Again, the Court is left to surmise what page or section of each exhibit supports the specific material fact set forth in the separate statement. 

            Finally, assuming Defendants’ SSUMF Nos. 16-22 are tied to the 17500 cause of action, these facts pertain to the advertising materials relied upon by Plaintiff to choose UCLA for treatment.  SSUMF Nos. 16-22 do not affirmatively negate an element of Plaintiffs’ 17500 cause of action.  SSUMF Nos. 16-22 also do not establish Plaintiff’s lack of evidence in support of an essential element of his 17500 cause of action or his inability to reasonably obtain such evidence. 

            Defendants’ Motion for Summary Judgment or Adjudication of the 3^rd cause of action for false advertising under B&PC 17500 is DENIED. 

III. 4^th cause of action for violation of CLRA—DENY

            “The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:…(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have…(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.”  CC §1770(a)(5) and (7). 

            For the same reasons stated in connection with the 3^rd cause of action for false advertising, Defendants fail to satisfy their initial burden as moving party.  Defendants’ Motion for Summary Judgment or Adjudication of the 4^th cause of action for violation of CLRA is DENIED.