Judge: H. Jay Ford, III, Case: 22SMCV01309, Date: 2024-05-23 Tentative Ruling

Case Number: 22SMCV01309    Hearing Date: May 23, 2024    Dept: O

Case Name:  Estate of Jaklin Rasekhnia, et al. v. Philips North America, LLC, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OF ISSUES

MOVING PARTIES:           Defendants Apguard Medical Inc. and Falih Audish, RCP (Doe 1)

RESP. PARTIES:                 Plaintiffs The Estate Of Jaklin Rasekhnia, Estate of Masoud Kohan, Josephine Kohan, George Kohan, and Joseph Kohan

TENTATIVE RULING

            Defendants’ Motion for Summary Judgment is GRANTED.  The Court orders the Complaint filed by Plaintiffs against Defendants dismissed.

I.                LEGAL STANDARD

A defendant or cross-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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (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.) 

“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.)

II.             REQUEST FOR JUDICIAL NOTICE

            On May 9, 2024, Plaintiffs filed a request for judicial notice of Defendant Apguard Medical Inc.’s website, which “advertises that ‘established in 1987, Apguard Medical Inc. was created to bring about “a better home medical equipment experience” it the San Fernando Valley, Los Angeles and Ventura Counties...’”  (Request for Judicial Notice, p. 2:11-14 [emphasis removed].)

            The request for judicial notice is DENIED because the Court “may not take judicial notice of the truth of the contents of a website.”  (LG Chem, Ltd. v. Superior Court of San Diego County (2022) 80 Cal.App.5th 348, 362, fn. 7.)

III.           EVIDENTIARY OBJECTIONS

A.    Plaintiffs’ Objections

            On May 10, 2024, Plaintiffs filed a request for judicial notice of the entire declaration of John Heaston III (“Heaston”), which was filed with the moving papers, arguing that the declaration lacks foundation, contains improper expert testimony or opinion, and lacks foundation as to the expert’s special knowledge, skill, experience, training, education, and basis of the opinion.

            Plaintiffs’ objection to the “entire” Heaston declaration is OVERRULED.  The Court finds that the expert has laid sufficient foundation. 

            The Court notes that Plaintiffs only objected to Heaston’s declaration.  

B.    Defendants’ Objections

            On May 17, 2024, Defendants Apguard Medical Inc. (“Apguard”) and Falih Audish, RCP (“Audish”) (collectively, “Defendants”) filed evidentiary objections to the declaration of Michael Sheahan (“Sheahan”), which was filed with the opposition papers. 

            The Court rules on Defendants’ objections as follows.

            Objection No. 1 is SUSTAINED as to Paragraphs 4, 5, and 7 for lack of foundation.  It is unclear from the declaration and attached exhibit what evidence the expert is relying on to form the conclusions in those paragraphs. 

            Objection No. 1 is also SUSTAINED as to Paragraph 6 because that paragraph is irrelevant to the instant motion; defendant Phillips is not one of the parties currently moving for summary judgment or adjudication. 

            Objection No. 1 is OVERRULED as to other paragraphs in Sheahan’s declaration.

            With regard to Objection No. 2: “The trial court has broad discretion to determine whether proposed expert testimony lacks the necessary foundation to be reliable, relevant and admissible.”  (People v. Fortin (2017) 12 Cal.App.5th 524, 531.) 

            “The foundation required to establish the expert’s qualifications is a showing that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions involving the subject matter of the opinion.”  (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.)

            Here, Sheahan only states the following in his declaration:

I am a career health care professional and licensed Respiratory Therapist with twenty-five years of experience in technical, clinical, educational, and administrative aspects of my profession.  Through my experience in hospitals, businesses, state societies, and academic institutions I have demonstrated the ability needed to deliver quality education, training and insight in a wide variety of medical environments.

(Sheahan Decl., ¶ 1.)

            The above paragraph is insufficient to show that the expert has the requisite knowledge to opine regarding (1) the interpretation, meaning, and significance of Reskihana’s breathing rate noted in the Ventilator’s logs, (2) the Ventilator’s features, (3) the Ventilator’s alleged disconnection, (4) Audish’s alleged failure to satisfy the standard of care, or (5) the cause of Rasekhnia’s death.

            Accordingly, Objection No. 2 to the entire Exhibit 1 attached to Sheahan’s declaration is SUSTAINED.

IV.           DISCUSSION

Defendants move for summary judgment or summary adjudication, arguing that they are immune from strict liability, Plaintiffs’ claims are barred by the applicable statute of limitations, and they met the applicable standard of care.

A.    Whether Defendants are Immune From the First Cause of Action for Strict Products Liability

“The issue whether a defendant falls within the scope of the strict liability doctrine generally is a question of law [citation].”  (Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 778, fn. 10 (“Bay Summit”).)

“However, the issue becomes a factual one where the facts regarding the extent of the defendant’s participation in the enterprise are disputed.”  (Bay Summit, supra, 51 Cal.App.4th at p. 778.)

“California’s products liability doctrine ‘provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective product.’  [Citations.]”  (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 576 (“Taylor”); Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [“Traditionally, under the doctrine of strict products liability, all defendants in the chain of distribution are jointly and severally liable, meaning that each defendant can be held liable to the plaintiff for all damages the defective product caused”].)

“[T]he California Supreme Court explained three decades ago, the basis for imposing strict products liability on a particular defendant is that ‘he has marketed or distributed a defective product.’  [Citation.]”  (Taylor, supra, 171 Cal.App.4th at p. 575; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 739 [“Regardless of the identity of a particular defendant or of his position in the commercial chain the basis for his liability remains that he has marketed or distributed a defective product”].)

“Another phrase for this notion of responsibility is the ‘stream of commerce’ theory.  [Citation.]  ‘[S]trict liability may attach even if the defendant did not have actual possession of the defective product or control over the manner in which the product was designed or manufactured.’  [Citation.]”  (Taylor, supra, 171 Cal.App.4th at pp. 575-576.)  “[That] nexus of liability is present, as one court succinctly summarized, if the plaintiff’s evidence establishes ‘(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.’  [Citation.]”  (Id. at p. 576.)  “It is plaintiff’s burden to produce evidence of these factors linking the injury-producing product with a particular entity in the stream of commerce of that product.”  (Ibid.)

In Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672 (“Murphy”), a case the parties discuss here, the California Supreme Court considered “whether a retail pharmacy is strictly liable for injuries caused by an inherent defect in a drug.”  (Id. at p. 676.)

To answer that question, the Supreme Court determined that it was “critical … to determine if the dominant role of a pharmacist in supplying a prescription drug should be characterized as the performance of a service or the sale of a product” because “as a general rule … ‘those who sell their services for the guidance of others ... are not liable in the absence of negligence or intentional misconduct.’  [Citation.]”  (Murphy, supra, 40 Cal.3d at p. 677 [emphasis added].) 

For example, in Carmichael v. Reitz (1971) 17 Cal.App.3d 958 (“Carmichael”), the Murphy court noted, “[a] doctor who prescribed a drug purchased by the patient at a pharmacy was held not to be strictly liable for injuries resulting from its use.”  (Murphy, supra, 40 Cal.3d at p. 677.)  “In response to the argument of the [Carmichael] plaintiff that the doctor was ‘in a sense a retailer’ of the drug, the [California Court of Appeal] stated that the doctor prescribed the medication only as an aid to effect a cure and was not in the business of selling the drug.”  (Ibid.)  “The [Carmichael] court observed, ‘[T]he distinction between a transaction where the primary objective is the acquisition of ownership or use of a product and one where the dominant purpose is to obtain services has not been obliterated.  Where the services sought are professional in character, the distinction applies a fortiori.’  [Citation.]”  (Ibid. [italics in original].) 

In addition to Carmichael, the California Supreme Court in Murphy discussed one New Jersey case which “held that a dentist was not strictly liable for injuries caused by a needle which broke during the course of treatment due to a latent defect.”  (Murphy, supra, 40 Cal.3d at p. 677.)  “The [New Jersey] court characterized the difference between a sale and a service as follows: ‘[T]he essence of the transaction between the retail seller and the consumer relates to the article sold.  The seller is in the business of supplying the product to the consumer.  It is that, and that alone, for which he is paid.  A dentist or physician offers, and is paid for, his professional services and skill.  That is the essence of the relationship between him and his patient.’  [Citation.]”  (Ibid. [italics in original].)

            However, unlike a doctor and dentist, the Supreme Court in Murphy noted that “a pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs.”  (Murphy, supra, 40 Cal.3d at p. 678.)

            Therefore, to decide whether sales or service predominated the role of a pharmacy, the Supreme Court expanded its inquiry (beyond the principles articulated in the two cases above) by turning to enacted statutes.  (Murphy, supra, 40 Cal.3d at p. 679.)  The Supreme Court noted that the Business and Professions Code section 4046 “showed “that the practice of pharmacy is not only a profession [citation], but also a ‘dynamic patient-oriented health service that applies a scientific body of knowledge to improve and promote patient health by means of appropriate drug use and drug related therapy’ [citation].  [Citation.]”  (Ibid. [italics in original].) 

The Supreme Court also considered policy reasons.  (Murphy, supra, 40 Cal.3d at pp. 680–681 [“If pharmacies were held strictly liable for the drugs they dispense, some of them, to avoid liability, might restrict availability by refusing to dispense drugs which pose even a potentially remote risk of harm, although such medications may be essential to the health or even the survival of patients.  Furthermore, in order to assure that a pharmacy receives the maximum protection in the event of suit for defects in a drug, the pharmacist may select the more expensive product made by an established manufacturer when he has a choice of several brands of the same drug”].)

“Based on its analysis of the role of a pharmacist, the court in Murphy held that a pharmacy in dispensing prescription drugs is performing a service and therefore is not strictly liable for an inherent defect in a drug.”  (Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 432.)

Here, Defendants produce the following evidence to prove that their role in their interactions with Rasekhnia (“Decedent”) was predominantly to perform a service instead of distributing or selling the Ventilator. 

Transcripts from Audish’s deposition. 

During his deposition, Audish testified as follows.  When asked what he does for a living, he testified that he is a respiratory therapist by trade.  (Defendants’ Separate Statement, filed March 4, 2024, Exhibit E – Audish Deposition, Vol. I (“Audish Vol. I Depo”), p. 10:23-25.)  He has been a respiratory therapist since 1985 and received his AA degree in respiratory from San Diego University of Health and Sciences.  (Audish Vol. I Depo., p. 11:1-13.)  A person has to be licensed to be a respiratory therapist, and he has been licensed continually since 1984.  (Audish Vol. I Depo., p. 11:14-20.) 

Defendants also submit a declaration from Ashraf Elsayegh, MD, FCCP (“Dr. Elsayegh”) as evidence. The doctor testifies that he is a physician licensed to practice medicine in California, and, since 2007, has worked in private practice, specializing in Pulmonary Disease, Sleep Disorders, Internal Medicine and Diaphragm Disorders.  (Declaration Of Ashraf Elsayegh, M.D., FCCP, filed on March 4, 2024 (“Elsayegh Decl.”), ¶¶ 1, 4.)  In the latter capacity, he is, among other things, the Pulmonary Director of the Amyotrophic Lateral Sclerosis (ALS) Clinic at Cedars Sinai Medical Center (from 2006 to present) and a member of the International Ventilator User Network – an Affiliate of the Post-Polio Health International (from 2015 to the present).  (Elsayegh Decl., ¶ 4.)  Dr. Elsayegh’s area of special interest and area of research is respiratory muscle dysfunction in neuromuscular patients.  (Elsayegh Decl., ¶ 5.)  Since 2006, he has served as an Assistant Clinical Professor at the University of California, Los Angeles, David Geffen School of Medicine, in the Department of Pulmonology and Critical Care.  (Elsayegh Decl., ¶ 6.) 

Dr. Elsayegh opines that “[t]he standard of care for practicing Respiratory Care Providers in California does not discuss the setting of available settable alarms on the Trilogy 100 Non-Invasive Ventilator.”  (Elsayegh Decl., ¶ 16.) 

Instead, the setting of available alarms “is ordered at the discretion of physicians on a case by case basis.”  (Elsayegh Decl., ¶ 16.) 

Indeed, the following facts are undisputed.

“On May 24, 2019 the Decedent, a 66 year old, bedridden, paralyzed, nonverbal patient was admitted to Cedars Sinai Medical Center for a multiple number of life threatening medical ailments, including chronic hypercapnic respiratory failure (the chronic build up of excess carbon dioxide in the blood stream).”  (Plaintiffs’ Response to Defendants’ Separate Statement of Undisputed Material Facts (the “Parties’ UMF”), 1.) 

 “October 9, 2019, in anticipation of Decedent’s discharge from the hospital, Decedent’s pulmonologist, Mohammad A. Ansari, M.D., (hereinafter ‘Dr. Ansari’) wrote an order for a Trilogy 100 Ventilator so that Decedent could continue with her respiratory therapy treatments at home.”  (Parties’ UMF, 2.)

 “Once Dr. Ansari wrote his order for that Ventilator, a case manager at Cedars Sinai Medical Center contacted Defendant Apguard, one of their preferred licensed respiratory medical equipment suppliers, to provide the Trilogy 100 Ventilator for home use by the Decedent.”  (Parties’ UMF, 4 [emphasis added].)  “Defendant Apguard is a medical equipment supplier, licensed by the State of California, focusing on providing respiratory care equipment, such as the Trilogy 100 Ventilator, to patients for use at home when discharged from the hospital.”  (Parties’ UMF, 5.)  “On October 16, 2019, Defendant Audish, a Respiratory Care Provider employed by Apguard received the order for Decedent’s Trilogy 100 Ventilator.”  (Parties’ UMF, 6.)

Audish testified during his deposition that his duties were that when he received an order from Dr. Ansari, his job was to, among other things, program the machine to match the doctor’s orders.  (Audish Vol. I Depo., p. 52:1-13.)

Defendants also submit Heaston’s declaration, a Respiratory Care Practitioner who received his degree in Respiratory Therapy CPTC (1991), Respiratory Therapy AARRT from Independence University (2018), and Respiratory Therapy.  (Heaston Decl., filed March 4, 2024, ¶ 1.)  Heaston has been registered as a Respiratory Care Practitioner with the Respiratory Care Board of California and has served as a Respiratory Care Practitioner in good standing in California since 1992.  (Heaston Decl., ¶ 2.)  From 1998 to the present, he has worked as a sales executive, marketing manager, and regional accounts manager for a number of respiratory care companies specializing in the marketing and sales of respiratory care equipment, specifically in Mechanical Ventilation.  (Heaston Decl., ¶ 4.)  In his position as a Marketing Manager, Sales Trainer, Senior Sales Account Manager, and Regional Sales Specialist with Philips Healthcare/Respironics, he was trained and has extensive knowledge of the software programs associated with the Trilogy 100 Ventilator that are needed to properly investigate the ventilator’s functionality, including proprietary software programs, such as Direct View and Care Orchestrator, that are routinely used to evaluate the ventilator’s functionality and patient data to determine the conditions in which a reported patient event occurred while using a Trilogy 100 Ventilator.  (Heaston Decl., ¶ 7.) 

            Heaston opines, among other things, as follows.  “Dr. Ansari’s stated rationale for the home use of the Trilogy 100 Ventilator was that the ‘patient will require nocturnal, PRN, non-invasive ventilation to reduce hypercapnia.  The patient will require nocturnal (as well as intermittent daytime) ventilatory treatment to reduce hypercapnia’ [citation].”  (Heaston Decl., ¶ 12 [emphasis added].)  “Dr. Ansari’s instructions were for the Trilogy 100 Ventilator to be set up by Defendant Audish in the non-invasive AVAPS-AE mode.  That means ‘Average Volume Assured Pressure Support’ with ‘Auto EPAP’ which is Respironics proprietary mode.  The mode adapts to the patient providing a fixed Volume goal where pressure is adjusted up and down to maintain the targeted volume setting.”  (Heaston Decl., ¶ 13.)  “The AVAPS-AE mode is FDA cleared as a Non Invasive only mode, it is not intended for trached or intubated patients commonly referred to as ‘Life Support.’  If a patient becomes incapable of spontaneous breathing, other ventilation types would need to be employed and ordered by the physician in charge.”   (Heaston Decl., ¶ 15.)  “The AVAPS AE mode utilization would be contrasted by a Trilogy I 00 Ventilator set in an Invasive mode, requiring breath types such as Assist Control or Pressure Control Ventilation, in combination with other features.  These are very common invasive breath types that are used in mechanical ventilation, inside and outside of hospitals all over the world.”  (Heaston Decl., ¶ 15 [italics in original].) 

            The Court finds that based on the evidence above, Defendants have met their burden of showing that their predominant role in their interactions with the Decedent was to provide a professional service, specifically, respiratory therapy through the Ventilator.  Indeed, they even had to be licensed to offer such services; their job was not merely delivering the Ventilator but making sure the Ventilator carried out its health-related purposes for the Decedent.  Further, in Murphy, the California Supreme Court noted a “pharmacist who fills a prescription is in a different position from the ordinary retailer because he cannot offer a prescription for sale except by the doctor's order.  In [that] respect, [the pharmacist] is providing a service to the doctor and acting as an extension of the doctor in the same sense as a technician who takes an X-ray or analyzes a blood sample on a doctor's order.”  (Murphy, supra 40 Cal.3d at p. 679 [emphasis added].)  Here, like a pharmacist, Defendants were merely acting as an extension of Dr. Ansari since they could only set up the Ventilator pursuant to and in accordance with the doctor’s orders.

            Accordingly, the burden shifts to the Plaintiffs to show that a triable issue of one or more material facts exists regarding whether the Defendants’ role in their interactions with the Decedent was predominantly to provide service.

            In their opposition, Plaintiffs argue that Audish testified during his deposition that “he only provided equipment pursuant to his contractual relationship with Cedar Sinai, and not services.”  (Opposition, p. 14:23-25 [emphasis removed], citing Plaintiffs’ Additional Separate Statement of Undisputed Material Facts, filed May 9, 2024 (“AUMF”), 24; also citing Plaintiffs’ Compendium of Evidence, filed May 9, 2024 (“COE”), Exhibit 4 – a copy of Audish Vol. I Depo., pp. 27:25-28:1-8.)

            However, the Court has reviewed Exhibit 4 in the Plaintiffs’ COE and noticed that the Plaintiffs did not attach Pages 27 and 28 from Audish’s Volume I deposition transcripts.  Page 28 is also missing from the Defendants’ copy of the deposition transcripts.

            The Court has also reviewed AUMF 24 and notes it only states: “Apguard owed a duty to Decedent Rasekhnia and Plaintiffs to, without limitation, manufacture, design, distribute, provide, lease, and/or rent life-saving ventilators and/or BiPAP machines, including, without limitation, the Subject Ventilators that are reasonably safe.”  In the AUMF, Plaintiffs cite Sheahan’s declaration and an Exhibit of the Ventilator manual to support that statement.

            However, the Court has sustained Defendants’ objections to the relevant portions of Sheahan’s declaration.

            In addition, to meet their burden, Plaintiffs “shall not rely upon the 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 the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)

            Plaintiffs also argue that Murphy is distinguishable because in Murphy, there was a statute that dictated that pharmacists were service providers while here, Defendants have not cited “similar statutes that support a finding that it is to be treated similarly because of its, at best,

hybrid enterprise.”  (Opposition, p. 17:17-21.23.)

            However, in their reply, Defendants cite Business and Professions Code section 3702.

Subdivision (a)(5) of that statute states: “Respiratory care as a practice means a health care profession employed under the supervision of a medical director in the therapy, management, rehabilitation, diagnostic evaluation, and care of patients with deficiencies and abnormalities which affect the pulmonary system and associated aspects of cardiopulmonary and other systems functions, …,” including “[t]he transcription and implementation of the written and verbal orders of a physician and surgeon pertaining to the practice of respiratory care.”  (Emphasis added.) 

According to subdivision (c) of Section 3704 of the Business and Professions Code: “‘Medical director’ means a physician and surgeon who is a member of a health care facility’s active medical staff and who is knowledgeable in respiratory care.”

Subdivision (d) of the same section states, “‘[r]espiratory care’ includes ‘respiratory therapy’ or ‘inhalation therapy,’ where those terms mean respiratory care.” 

Here, it is undisputed that Audish provided the Ventilator services pursuant to Dr. Ansari’s orders.

Accordingly, the Court finds Plaintiffs’ argument unpersuasive.

For the reasons set forth above, the Court finds that Plaintiffs have failed to meet their burden of showing that Defendants are not immune from strict products liability.

Accordingly, summary adjudication of the first cause of action for strict products liability is GRANTED.

B.    Whether Plaintiffs’ Negligence Claims are Barred by the Applicable Statute of Limitations

Defendants also move for summary adjudication of the second cause of action for negligence (failure to warn) and third cause of action for negligence lack merit, arguing that those claims are barred by the statute of limitations in Code of Civil Procedure section 340.5 (“Section 340.5”).

“Section 340.5 is part of an interrelated legislative scheme enacted to deal specifically with all medical malpractice claims.”  (Young v. Haines (1986) 41 Cal.3d 883, 894.)  The statute is part of the Medical Injury Compensation Reform Act of 1975 (MICRA).  (Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549, 555.)

The statute states in relevant part:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. 

(Code Civ. Proc., § 340.5 [emphasis added].) 

“As used in section 340.5, the word ‘injury’ means both the physical condition and its negligent cause.”  (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 945 (“Munoz”).)

The statute defines a health care provider as “any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.”  (Code Civ. Proc., § 340.5(1).)

Business and Professions Code section 3702, the statute that Defendants cited in their reply and the Court has discussed above, falls under Division 2 of the statutory scheme.  (Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549, 560 [“Division 2 is entitled, ‘Healing Arts.’  Running from sections 500 through 4999, it regulates not only physicians, but also dentists, chiropractors, audiologists, dietitians, physical therapists, nurses, psychologists, optometrists, pharmacists, veterinarians, and a variety of other health-related professions.  The division imposes licensing, certification, or registration requirements for the various professions, with the strictness of these requirements varying among the disciplines”].)

It is also undisputed that: “Since its inception in 1987, Defendant Apguard has been a durable medical equipment company, licensed by the State of California, specializing in providing respiratory care equipment, such as Trilogy 100 Ventilators, to their patients for use at home when discharged from the hospital.”  (Parties’ UMF, 52.)  In addition, Audish testified that he is a licensed respiratory care provider.  (Audish Vol. I Depo., p. 11:14-20.) 

Plaintiffs have not presented any evidence disputing the above findings (e.g., Apguard and Audish are licensed in California to provide respiratory therapy).

In addition, according to Section 340.5(2): “‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” 

“A claim arises out of professional negligence “if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services.  [Citation.]”  (Divino Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 984.)

Here, the second cause of action for negligence (failure to warn) alleges that Apguard failed to warn the Plaintiffs regarding the dangers of a detached hose, an alarm’s inability to go off, and/or the safe use of the Ventilator.  (Compl., ¶¶ 37, 38, 39.)  In the third cause of action for negligence, Plaintiffs allege that Apguard breached its duty to Decedent “when it negligently programmed, deprogrammed, set-up, designed, and/or set the Subject Ventilator’s alarm system such that the Subject Ventilator’s alarm failed to go off to notify DECEDENT RASEKHNIA’s family, including JOSEPHINE KOHAN, that the Subject Ventilator had stopped delivering its critical oxygen flow and pressure to DECEDENT RASEKHNIA.”  (Compl., ¶ 51.)

            The Court finds that both of those claims arise out of professional negligence since the basis of the claims was caused by conduct that was directly related to the Defendants’ rendition of professional services.

            Accordingly, the Court finds that the statute of limitations in Section 340.5 applies to Plaintiffs’ negligence claims.

“A plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods.”  (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189 [209 Cal.Rptr.3d 332, 338]

As shown above, “under the statute, ‘[a] medical malpractice action must be commenced within one year after the patient ‘discovers, or through the use of reasonable diligence should have discovered’ his ‘injury.’ (Code Civ. Proc., § 340.5.)”  (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 895.)

Here, it is undisputed that “[o]n July 4, 2020, the Plaintiffs knew that the reason why their mother was brain dead was because Defendant Apguard’s Respiratory Care Provider, Defendant Audish, had been accused by another respiratory therapist that by failing to set the alarms, the family was not alerted when the hose detached from the vented mask.”  (Parties’ UMF, 66.)

It is also undisputed that “[o]n July 4, 2020 Plaintiffs knew that it was Defendant Audish who was responsible for the Decedent being declared brain dead because he failed to set the Trilogy 100 Ventilator alarms.”  (Parties’ UMF, 68.)

Based on those undisputed facts, Plaintiffs had to commence their medical malpractice action against Defendants by July 4, 2021, that is, within one year of July 4, 2020, the date they discovered, or through the use of reasonable diligence should have discovered, that the reason Decedent became brain dead was because of Defendants’ alleged negligence in setting the Ventilator alarms.

Accordingly, the Court finds that Defendants have met their burden of showing that Plaintiffs’ negligence claims have no merit by proving their statute of limitations defense.

Therefore, the burden shifts to Plaintiffs to show that a triable issue of one or more material facts exists as to that defense.

Here, Plaintiffs have failed to meet that burden.  Plaintiffs only argue: “Because garden variety negligence-based and products liability theories apply to causes of action brought against Apguard as the provider, distributor, vendor, lessor, and/or retailer of the Subject Ventilator, Apguard’s arguments that Plaintiff’s Complaint is untimely are incorrect or at the very least create an issue of triable fact.”  (Opposition, p. 20:3-11 [emphasis removed].)  The point the Plaintiffs are attempting to make through that statement is lost on the Court.  Most importantly, as stated above, Plaintiffs have failed to show that Section 340.5 does not apply to their negligence claims and have claimed it is “undisputed” that on July 4, 2020, they had reason to know the Defendants were negligent.  In addition, the Court has found that Defendants are immune from strict liability.  Therefore, Plaintiffs have failed to show that their negligence claims are not barred by the one-year statute of limitations in Section 340.5.

For those reasons, summary adjudication of the second and third causes of action for negligence is GRANTED.  

C.    Whether Defendants Complied with the Standard of Care at all Times and Did Not do Anything to Cause Decedent’s Death or Plaintiffs’ Harm and, Therefore, are Entitled to Judgment in Their Favor 

Finally, Defendants move for summary judgment, arguing that they complied with the applicable standard of care.

Given the Court’s findings above, granting summary adjudication of the first cause of action for strict products liability and the second and third causes of action for negligence are barred by the applicable statute of limitations, the issue regarding whether Defendants complied with the applicable standard of care is moot.  However, even if the Court were to consider that issue, the Court finds that the Defendants would have met their burden of showing that no triable issues exist as to that issue, and Plaintiffs would have failed to meet their burden of showing triable issues exist because (1) Defendants have produce expert testimony attesting to their compliance with applicable standard of care and (2) Plaintiffs’ have not produced admissible evidence that Defendants failed to comply with the applicable standard of care.  (Heaston Decl., ¶¶ 10, 11, 14, 26; Elsayegh Decl., ¶¶ 40-43.)   In addition, Plaintiffs did not submit any evidence disputing the Defendants’ expert’s testimony that there were unauthorized alterations to the settings Audish had initially set and that it was those alterations that caused Decedent’s injuries.  (Elsayegh Decl., ¶¶ 23-32, 44.) 

            For the reasons set forth above, the motion for summary judgment is GRANTED.