Judge: Helen Zukin, Case: 20STCV48683, Date: 2022-12-15 Tentative Ruling
Case Number: 20STCV48683 Hearing Date: December 15, 2022 Dept: 207
Background
Plaintiffs Della Edge, by and through her
Successors-In-Interest Roxy Edge and Robin Edge and Roxy Edge and Robin Edge as
individuals (collectively “Plaintiffs”) bring this action concerning the
medical care received by Della Edge (“Decedent”). Plaintiffs assert causes of
action against Defendants for Elder Abuse, negligence, wrongful death, and
intentional infliction of emotional distress, among others. Plaintiffs claims
center around medical care and treatment received by Decedent at Kaiser West LA
hospital and Defendant Beachwood Post-Acute Rehabilitation Center (“Beachwood”)
in December 2019. Defendants Kaiser
Foundation Health Plan, Inc. (“KFHP”), Kaiser Foundation Hospitals, David
Clifford Chang, M.D. (“Dr. Chang”), and Southern California Permanente Group
(collectively the “Kaiser Defendants”) bring this motion for summary judgment,
or, in the alternative, summary adjudication, as to every cause of action
alleged against them as well as Plaintiffs’ claim for punitive damages.
Objections to Evidence
Plaintiffs’ objections to the evidence submitted by the
Kaiser Defendants are OVERRULED.
Summary Judgment Standard
Motions for summary judgment are governed by Code Civ. Proc. §
437c, which allows a party to “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.” (C.C.P. § 437c(a)(1).) The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party cannot show evidentiary support for a pleading or claim and to
enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(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.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence
in support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
As to each
claim as framed by the complaint, the defendant moving for summary judgment
must satisfy the initial burden of proof by presenting facts to negate an
essential element, or to establish a defense. (C.C.P. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the defendant
has met that burden, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (C.C.P. §
437c(p)(2); Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)
Summary Adjudication Standard
A party may move for summary adjudication as to one or more
causes of action, affirmative defenses, claims for damages, or issues of duty
if that party contends there is no merit to the cause of action, defense, or
claim for damages, or there is no duty owed. (See CCP §437c(f)(1).) “A motion
for summary adjudication shall be granted only if it completely disposes of a
cause of action, an affirmative defense, a claim for damages, or an issue of
duty.” (Ibid.) A party moving for summary
adjudication bears the burden of persuasion that there are no triable issues of
material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850.
In
analyzing motions for summary adjudication, the court must “view the evidence
in the light most favorable to the opposing party and accept all inferences
reasonably drawn therefrom.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party”).) A motion for
summary adjudication must be denied where the moving party's evidence does not
prove all material facts, even in the absence of any opposition (Leyva v.
Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v.
Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
Analysis
The following facts are undisputed
by the parties. Decedent was a 74-year-old woman living at home with her two
adult daughters, Plaintiffs Roxy and Robin Edge. On December 1, 2019,
Plaintiffs discovered a wound near Decedent’s sacral coccyx and Decedent was
taken to the emergency department at Kaiser West LA hospital for treatment. Dr.
Ben Hsu at Kaiser West LA referred Decedent to a skilled nursing facility for
wound care. That same day, Decedent was admitted to Beachwood for wound care.
Defendant Dr. Chang was the attending physician overseeing Decedent’s medical
care at Beachwood. On December 22, Decedent was transported from Beachwood to
the emergency department at UCLA hospital where she presented with complaints
of tachycardia and sacral decubitus ulcer. Decedent received treatment at UCLA.
On December 23, Decedent was re-admitted to Kaiser West LA, where she remained
until being discharged to home care on December 29. She would be readmitted to
Kaiser West LA in January, February, and April 2020 before passing away on
April 4, 2020. Plaintiffs’ causes of action against the Defendants in this
action stem from the alleged failure of Defendants to properly care and treat
Decedent’s pressure sores, in particular the wound near her sacral coccyx.
1. Kaiser
Foundation Health Plan, Inc.
KFHP moves for summary judgment on
the five causes of action asserted against it by Plaintiffs. KFHP argues
Plaintiffs’ claims all arise from the medical care and treatment provided to
Decedent, and it did not provide any such care or treatment to Decedent. KFHP
relies on Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248
Cal.App.4th 425. Plaintiff in Gopal brought claims for wrongful death
and negligence against KFHP, Kaiser Hospital, and SCPMG. KFHP moved for summary
judgment, arguing it did not provide or direct the medical treatment which
formed the basis of the plaintiff’s claims and by law could not be held liable
for the actions of the health care providers it contracted with. In affirming
summary judgment for KFHP, the Court of Appeal rejected plaintiff’s theory that
KFHP could be held liable with Kaiser Hospital and SCPMG on a theory of enterprise
liability.
Plaintiffs do not address KFHP’s
arguments in their opposition and accordingly have waived these causes of
action against KFHP. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243, 288 [“Defendants sought summary adjudication on the basis that plaintiff could
not show he was terminated ‘because of an actual or perceived disability.’ Plaintiff's
opposition brief below did not address this issue, nor does his brief before us.
We thus treat this cause of action as waived.”] Plaintiffs’ opposition makes
repeated reference to actions taken by “Kaiser Defendants” which is defined to
include KFHP, without identifying any specific actions or conduct by KFHP which
would render the holding in Gopal inapplicable here. Plaintiffs have
thus failed to meet the burden shifted to them by KFHP to show a triable issue
of material fact exists as to Plaintiffs’ claims against KFHP. Accordingly, the
Court GRANTS KFHP’s motion for summary judgment.
2. Elder
Abuse
To establish a claim for elder abuse
against the Kaiser Defendants, plaintiff must show they “(1) had responsibility
for meeting the basic needs of the elder or dependent adult, such as nutrition,
hydration, hygiene or medical care [citations]; (2) knew of conditions that made
the elder or dependent adult unable to provide for his or her own basic needs [citations];
and (3) denied or withheld goods or services necessary to meet the elder or dependent
adult’s basic needs, either with knowledge that injury was substantially certain
to befall the elder or dependent adult (if the¿plaintiff¿alleges oppression, fraud
or malice) or with conscious disregard of the high probability of such injury (if
the plaintiff alleges recklessness) [citations].” (Carter v. Prime Healthcare
Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 406-07.)
“‘[N]eglect’ within the meaning of
Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct
from ‘professional negligence.’” (Covenant Care, supra, 32 Cal.4th at 783.)¿“As
used in the Act, neglect refers not to the substandard performance of medical services
but, rather, to the ‘failure of those responsible for attending to the basic needs
and comforts of elderly or dependent adults, regardless of their professional standing,
to carry out their custodial obligations.’”¿ (Id.) “Neglect includes the
failure to assist in personal hygiene, or in the provision of food, clothing,
or shelter; the failure to provide medical care for physical and mental health
needs; the failure to protect from health and safety hazards; and the failure
to prevent malnutrition or dehydration.” (Sababin v. Superior Court
(2006) 144 Cal.App.4th 81, 88.) In order to distinguish elder abuse from professional¿negligence,
there must be a showing of recklessness, fraud, malice, or oppression. (Id.)
“Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing
of a despicable or injurious nature.” (Carter, supra, 198 Cal.App.4th¿at
405 [internal quotation marks omitted].) Recklessness requires deliberate disregard
of a high degree of probability an injury will occur. (Id.) The enhanced
remedies for elder abuse are only available for “acts of egregious abuse against
elder and dependent adults.” (Id.)¿
The Kaiser Defendants move for
summary adjudication on Plaintiffs’ cause of action for elder abuse, arguing
they acted within the applicable standard of care, did not neglect or abuse
Decedent, and were not the legal cause of her death. In support of their
arguments, the Kaiser Defendants rely on expert declarations from Dr. Harvey
Brown, Dr. Abraham Ishaaya, and Sandra Higelin submitted with their moving
papers.
Dr. Brown opines that (1) the
medical care and treatment provided by the Kaiser Defendants “complied with the
applicable standard of care” (Brown Decl. at ¶8); (2) there is “no evidence of
neglect attributed to any of Kaiser Defendants” (id at ¶8.j); (3)
“nothing Kaiser Defendants did or failed to do caused or contributed to
decedent’s death” (id at ¶9); (4) Decedent’s medical records
“demonstrate a clear pattern of consistent medical treatment, frequent
evaluations and assessments provided to the patent” and thus Decedent was not
neglected by the Kaiser Defendants (id at ¶10); and (5) there is nothing
in Decedent’s medical records which indicate the care and treatment provided by
the Kaiser Defendants “were based on anything other than good medical judgment”
(id at ¶11). Dr. Ishaaya similarly opines that: (1) the Kaiser
Defendants acted within the standard of care (Ishaaya Decl. at ¶8); (2) did not
cause or contribute to Decedent’s death (id at ¶9); (3) did not abuse or
neglect Decedent (id at ¶10); and (4) there is no evidence Decedent’s
treatment was based on anything other than good medical judgment (id at
¶11). Sandra Higelin, a registered nurse, further echoes the conclusions of Dr.
Brown and Dr. Ishaaya. (See Higelin Decl. at ¶¶8-10.) The Court finds
this expert testimony, based on Decedent’s medical records and other relevant
documents, is sufficient to carry the Kaiser Defendants’ initial burden of
proof as to Plaintiffs’ claim for elder abuse. The burden thus shifts to
Plaintiffs to show the existence of a triable issue of material facts.
Plaintiffs submit the declarations
of experts Dr. Michael Bain, Dr. Heather Hofmann, and Lisa Gildred to establish
the existence of a triable issue of material fact. Dr. Bain opines: (1)
Decedent “died from septic shock due to the significantly worsening pressure
injury as a result of the neglect and abandonment she experienced at Beachwood
under Dr. Chang” (Bain Decl. at ¶33); (2) the medical treatment Decedent
received at Beachwood under Dr. Chang fell below the standard of care (id
at ¶34); (3) these breaches of the standard of care were avoidable, show a
conscious disregard for Decedent’s welfare, and “caused and increased her
avoidable pain, suffering, dehydration, and malnutrition” (id at ¶38); the
care team at Beachwood “withheld medical care” from Decedent and acted
recklessly and with a willful disregard toward Decedent (id at ¶¶39-41).
Dr. Hofmann similarly opines that Dr. Chang: (1) breached the standard of care
(Hoffman Decl. at ¶10); (2) caused injuries to Decedent (id at ¶¶11,
16-17); (3) withheld medical care from Decedent and acted recklessly and with a
willful and conscious disregard of Decedent (id at ¶¶18-20, 22); and (4)
was a substantial factor in causing and contributing to Decedent’s death (id
at ¶21). Lisa Gildred, a registered nurse, offers similar testimony concerning
Dr. Chang’s care. (Gildred Decl. at ¶¶11-12, 14-15.)
The declarations submitted by
Plaintiffs address Plaintiffs’ claims against Dr. Chang, however these
declarations do not address Plaintiffs’ allegations with respect to the remaining
Kaiser Defendants. Plaintiffs in their opposition request a continuance
pursuant to Code Civ. Proc. § 437c(h) to obtain additional discovery necessary
to oppose the Kaiser Defendants’ motion.
Section 437c(h) provides in
pertinent part “If it appears from the affidavits submitted in opposition to a
motion for summary judgment or summary adjudication, or both, that facts
essential to justify opposition may exist but cannot, for reasons stated, be
presented, the court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or make any other order as
may be just.” As the Court in Frazee v. Seely explained:
The nonmoving
party seeking a continuance “MUST SHOW: (1) the facts to be obtained are essential
to opposing the motion; (2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts. [Citations.]”
( Wachs v. Curry (1993) 13 Cal. App. 4th 616, 623 [16 Cal. Rptr. 2d 496].)
The decision whether to grant such a continuance is within the discretion of the
trial court. ( FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App.
4th 69, 72 [41 Cal. Rptr. 2d 404].) But as this court recently noted, the interests
at stake are too high to sanction the denial of a continuance without good reason.
“[T]echnical compliance with the procedures of Code of Civil Procedure section 437c
is required to ensure there is no infringement of a litigant’s hallowed right to
have a dispute settled by a jury of his or her peers.” ( Bahl v. Bank of America
(2001) 89 Cal. App. 4th 389, 395 [107 Cal. Rptr. 2d 270].)
Subdivision (h)
was added to section 437c of the Code of Civil Procedure (hereafter section 437c)
“[t]o mitigate summary judgment’s harshness,” and it mandates a continuance for
the nonmoving party “ ‘ “upon a good faith showing by affidavit that a continuance
is needed to obtain facts essential to justify opposition to the motion.” [Citation.]’
[Citation.]” ( Bahl v. Bank of America, supra, 89 Cal. App. 4th at
p. 395.) Moreover, the affiant is not required to show that essential evidence does
exist, but only that it may exist. This, and the language stating the continuance
shall be granted upon such a showing, “leaves little room for doubt that such continuances
are to be liberally granted.” (Ibid.)
(Frazee v. Seely (2002) 95 Cal.App.4th
627, 633-634.)
Plaintiffs’ request for a
continuance is supported by a declaration from counsel stating, “a substantial
amount of discovery remains to be conducted in this matter.” (Worthy Decl. at
¶16.) In particular, counsel asserts it will be necessary to depose Dr. Ben Hsu
from Kaiser West LA and potentially other witnesses regarding Decedent’s
presentation to Kaiser and referral to a skilled nursing facility. (Id.)
Counsel also represents additional discovery will be necessary to determine the
extent of Beachwood’s affiliation with Kaiser Foundation Hospital and whether
“Beachwood’s failures would implicate Kaiser Foundation Hospitals.” (Id.
at ¶17.) Counsel additionally claims it is awaiting production of records from
Adult Protective Services regarding Decedent’s “Beachwood admission and elder
neglect” which could “establish facts regarding ratification between the Kaiser
Defendants, Dr. Chang and Beachwood.” (Id. at ¶18.) Counsel further
states the parties have been diligent in pursuing discovery in this matter, which
has so far involved the production and review of voluminous medical records and
several depositions. (Id. at ¶21.) Counsel also represents the
“discovery conducted in this matter has been detailed and thorough, but is far
from finished” and suggests a “trial continuance request is imminent.” (Id.)
The Court notes this declaration submitted by Plaintiffs does not identify any
discovery which would establish a basis for imposing liability against KFHP or
otherwise address the legal authority cited by KFHP.
The Kaiser Defendants’ remaining
arguments concerning Plaintiffs’ other causes of action and punitive damages
similarly rely on the expert declarations discussed in the context of
Plaintiffs’ cause of action for elder abuse. Requests for continuances are to
be liberally granted, and on the record before it, the Court finds Plaintiffs
have sufficiently shown good cause to justify a continuance under Code Civ.
Proc. § 437c(h) with respect to all Kaiser Defendants with the exception of
KFHP. Plaintiffs and the Kaiser Defendants may file supplemental briefing
pursuant to the timing requirements of Code Civ. Proc. § 437c(b) as calculated
from the continued hearing date to be determined at the December 15, 2022
hearing.
Conclusion
Kaiser Foundation Health Plan’s motion for summary judgment
is GRANTED. The motion for summary judgment, or, alternatively, summary
adjudication brought by Defendants Kaiser
Foundation Hospitals, and David Clifford Chang, M.D., and Southern California
Permanente Group is continued to _________________________ with supplemental
briefing permitted by the parties in accordance with Code Civ. Proc. § 437c(b).