Judge: H. Jay Ford, III, Case: 23SMCV00846, Date: 2024-07-09 Tentative Ruling

Case Number: 23SMCV00846    Hearing Date: July 9, 2024    Dept: O

  Case Name:  Ashley v. Dr. Bruce Kadz, M.D, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Dr. Bruce B. Kadz. M.D.

RESP. PARTY:         Plaintiff Terry Ashley

TENTATIVE RULING

            Defendant Dr. Bruce B. Kadz. M.D.’s Motion for Summary Judgment is DENIED. Defendant fails to submit admissible evidence to support his complete defense to Plaintiff’s lone cause of action for professional negligence. Plaintiff proves the existence of a triable issue of material fact as to Defendant’s complete defense.  

            Plaintiff Terry Ashley’s Objections Nos. 1­–12 are SUSTAINED.  “[A] boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,” is not sufficient to establish personal knowledge. (Citation.) ‘Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.’ ”).”  Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 168–169.  Nor does counsel show how his belated  “supplemental declaration” filed with the reply cures his lack of personal knowledge of the facts stated in his initial declaration.

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

I.                Defendants Do Not Meet Their Burden to Show that There is a Complete Defense to the lone Cause of Action for Professional Negligence.  

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            Defendant Dr. Bruce B. Kadz. M.D. (“Dr. Kadz”) moves for summary judgment on the basis of an allegedly agreed upon written release form entered into between the parties on 1-20-22 (the “Release Form”). (SSUF, ¶¶ 10–12; Farkas Decl., ¶¶ 6–7, Ex. E, F.) Dr. Kadz provides a declaration from his attorney Alexander M. Farkas (“Farkas”) attesting to the authenticity of the evidence in support of the motion attached to the declaration including the Release Form and $1,500 check made out to Plaintiff Terry Ashley (“Ashley”) in consideration for agreeing upon the Release Form. (See Ibid.)  Dr. Katz argues the allegedly agreed upon 1-20-22 release form extinguishes all of Ashley’s claims against Dr. Kadz, and thus acts as a compete defense to the lone cause of action. (See Tarpy v. County of San Diego (2003) 110 Cal.App.4th 267, 276.) [“A written release generally extinguishes any obligation covered by its terms, provided it has not been obtained by fraud, deception, misrepresentation, duress or undue influence.”]; see also (Winet v. Price (1992) 4 Cal.App.4th 1159, 1173 [holding that a general release can “extinguish all future claims regardless of their then status in terms either of maturity or knowledge.”].)

            However, the Farkas Declaration alone does not provide proper authentication for the evidence submitted. Farkas does not declare any facts to substantiate the authenticity of the documents provided, nor does the motion provide other declarations of qualified witnesses, namely Dr. Kadz or his employee who allegedly handed the documents to Ashley, who can attest to the authenticity of the evidence. The submitted evidence along with the Farkas Declaration alone amounts to hearsay and thus not admissible without an exception the hearsay rule. (See Evid. Code ¶ 1200 [“Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”].)

            Additionally, the Farkas Declaration does not meet the business records exception to the hearsay rule. “Hospital records are often admissible under the business records exception to the hearsay rule, assuming a custodian of records or other duly qualified witness satisfies the requirement of the exception.” (In re R.R. (2010) 187 Cal.App.4th 1264, 1280.) The Business Records Exception to the hearsay rule allows for the admission of hearsay evidence if all the following requirements are met:

“(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.”

(People v. Zavala (2013) 216 Cal.App.4th 242, 246.)

            The Farakas Declaration does not meet any of the business records exception requirements in order to properly authenticate the submitted evidence as business records. Dr. Kadz does not argue, nor can the Court find, that the release form was made in the regular course of Dr. Kadz’s business. Furthermore Farkas does not declare that he is a custodian or qualified witness for the Release Form or check.

            The Court finds that Dr. Kadz does not meet his burden to provide admissible evidence negating any elements of Ashley claims, or to provide a complete defense to the claim. Even if Dr. Kadz did meet his burden, Ashley provides a declaration to show multiple triable issues of material fact, thus defeating the motion on the second prong of the analysis.

            Ashely declares she “did not sign the document entitled "FULL RELEASE AGREEMENT" dated 22 January 20, 2022 . . . . Nor did I initial any page or provision of this purported FULL RELEASE AGREEMENT . . . . Nor did I ever cash the check attached as Exhibit F to the Farkas Declaration.” (SSUF, ¶¶ 10–12; Ashley Decl., ¶ 15.) Thus, there is a dispute as to the material fact of whether the Release Agreement was agreed upon by the parties, and whether the check was cashed to infer Ashley’s agreement.  

            Dr. Kadz’s Motion for Summary Judgment is DENIED.