Judge: Holly J. Fujie, Case: 20STCV19545, Date: 2023-10-25 Tentative Ruling

Case Number: 20STCV19545    Hearing Date: March 15, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTIES: Defendant Marcel Adrian Solero Filart (“Filart”)

RESPONDING PARTY: Plaintiffs Emma Martin (“Mrs. Martin”), Elizabeth Gagliano (“Gagliano”) and Kathryn Sessinghaus (“Sessinghaus”) (collectively, “Plaintiffs”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            This survivor action arises out of the death of Vincent Paul Martin (“Mr. Martin”).  Plaintiffs allege that Mr. Martin died from COVID-19 at the onset of the COVID-19 pandemic while admitted at HPHC, a nursing facility.  The currently operative fourth amended complaint (the “4AC”) alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act (the “Elder Abuse Act”); (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendant’s Request for Judicial Notice is GRANTED. (Evid. Code § 452.)

EVIDENTIARY OBJECTIONS

            Plaintiffs’ evidentiary objections are OVERRULED as Plaintiff has objected to material facts in Defendant’s separate statement rather than actual evidence. This is improper.

            Defendant’s evidentiary objections to the Declaration of Dr. Schneider are OVERRULED.

DISCUSSION

Legal Standard

“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.)  “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.”  (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.”  (Code Civ. Proc. § 437c(p)(2).)  “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.)  Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact.  (Id. at 849.)  With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.”  (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.”  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.) “A defendant . . . 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 causes of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc. § 437c(p)(2).)  By contradicting prior discovery responses, a party cannot create a triable issue of material fact.  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.)  The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.”  (Id. at 1087.)  “Summary adjudication motions are procedurally identical to summary judgment motions.”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.)  “A party may not avoid summary judgment based on mere speculation and conjecture . . . but instead must produce admissible evidence raising a triable issue of fact.”  (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.)

In the context of a summary judgment motion “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”  (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 252.)  “If the defendant in a run-of-the-mill civil case moves for summary judgment . . . based on the lack of proof of a material fact, the judge must ask himself [or herself] not whether he [or she] thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”  (Id.)  “[A] party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.”  (Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1118.)  A triable issue of material fact is found “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) A “plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.”  (Id., emphasis added.)  “And finally, plaintiff’s evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.”  (Id. at 433-434.)  “Where a party’s self-serving declarations contradict credible discovery admissions and purport to impeach that party’s own prior sworn testimony, they should be disregarded.”  (Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473.)  “[M]any employment cases present issues of intent, motive, and hostile working environment, issues not determinable on paper. Such cases . . . are rarely appropriate for disposition on summary judgment, however liberalized it be.”  (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.)  “[B]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.”  (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1386.)

Public Readiness and Emergency Preparedness Act

            Defendant argues that the claims are barred by the Public Readiness and Emergency Preparedness Act (“PREP Act”) which provides liability immunity to medical providers attempting to care for patients during a pandemic. Defendant represents that the PREP Act provides immunity from civil liability for any “covered person” (which includes physicians) who provide “covered countermeasures” (which include use of medications and other treatment) during a pandemic, specifically including COVID-19.

The PREP Act is embodied in 42 U.S.C. §§ 247d-6d and 247d-6e.  Subsection (b) of the PREP Act authorizes the Secretary of Health and Human Services (“Secretary”) to make a determination that a disease or other health condition or other threat to health constitutes a public health emergency, or that there is a credible risk that the disease, condition, or threat may in the future constitute such emergency.  (42 U.S.C. § 247d-6d(b)(1).)  The declaration is to be made through publication in the Federal Register. (Ibid.) 

The PREP Act immunizes covered persons from suit and liability under federal and state law “with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.”  (42 U.S.C. § 247d-6d(a)(1).)  The scope of that immunity includes “any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.”  (42 U.S.C. § 247d-6d(a)(1)(B).) 

The PREP Act further states that “[n]o court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary under this subsection.”  (42 U.S.C. § 247d-6d(b)(8).) 

            In March 2020, the Health and Human Services Secretary issued a Declaration invoking the PREP Act for the COVID-19 pandemic, effective on February 4, 2020.  (RJN Exh. O.)  The declaration provides that the Secretary issued the declaration “to provide liability immunity for activities related to medical countermeasures against COVID-19.”  (Ibid.)

The Secretary amended the Declaration and asserted that respiratory protective devices approved by the National Institute for Occupational Safety and Health were to be considered a covered countermeasure under the PREP Act.  (RJN Exh. U.)

The Secretary again amended the Declaration and clarified “that covered countermeasures under the Declaration include qualified products that limit the harm COVID-19 might otherwise cause.”  (RJN, Exh. V.)

The Fourth Amended Declaration (“Fourth Amendment”) incorporated advisory opinions published by the General Counsel for the Office of the Secretary. (RJN, Exh. W.)  The Fourth Amendment also “[m]akes explicit…that there can be situations where not administering a covered countermeasure to a particular individual can fall within the PREP Act and this Declaration’s liability protections.”  (Ibid.)  Such a situation exists when one covered countermeasure is not administered to one individual in order to administer it to another individual.  (Ibid.)

Here, as Plaintiffs point out in opposition, Defendant has not provided evidence that he is a covered person. Dr. Filart asserts he is a “program planner” because healthcare providers “like Dr. Filart” are required by California law to implement infection control programs, citing to Cal. Code Regs., tit. 22, §§ 72321(b) and 87101(u)(1). (Mot. 18:11-14.) However, section 72321(b) states only that a “[skilled nursing] facility shall adopt, observe and implement written infection control policies and procedures” and makes no mention of individual healthcare providers nor COVID-19. Additionally, section 87101(u)(1) merely provides the definition for an “Unlicensed Residential Care Facility for the Elderly.” HPHC is a skilled nursing facility (not a Residential Care Facility for the Elderly) and in any case the definition makes no mention of individual healthcare providers nor COVID-19. (Cal. Code Regs., tit. 22, § 87101(u)(1).) As to his argument regarding being a “covered person,” he again cites to the definition for an “Unlicensed Residential Care Facility for the Elderly” under Cal. Code Regs., tit. 22, § 87101(u)(1) for his assertion that he is a person authorized to administer covered countermeasures under California law. (Mot. at 18:22-25.) With no evidentiary support, Dr. Filart states in a conclusory manner that he is a qualified person because he was “directed by federal, state, and local public health officials to implement universal infection prevention and control protocols to treat and mitigate the spread of COVID-19, and were [sic] among the class of workers directed to continue to work as part of the nation’s critical infrastructure.” (Mot. at 18:25-28.) Lastly, the Court observes that Defendant’s separate statement also does not provide the requisite evidence and is improper. Under Issue Six for the PREP Act, Defendant merely cites to the allegations in the 4AC, advisory opinions and the Health and Human Services Secretary’s amended declarations, and all evidence in support of UMF Nos. 1-40. Citing generally to all evidence in support of UMF Nos. 1-40 is improper and unreasonable for the Court to sift through the evidence supporting 40 material facts. Accordingly, Defendant has not met his burden to show he is a covered person.

Additionally, Defendant has not met his burden to show that the case involves covered countermeasures. Defendant contends that Plaintiffs’ allege Dr. Filart administered improper treatment to Mr. Martin in April 2020, to treat his COVID-19 virus and related diseases, and that they contest the COVID-19 therapies administered to Mr. Martin. (Mot. at 20:6-8.) Defendant cites to Paragraphs 134-135, 141, and 143 of the 4AC. In relevant part, the paragraphs specifically allege that Defendants breached their duty to “a. Adequately staff HPHC; b. Ensure that each worker received adequate training before working with Mr. Martin; c. Provide services that meet professional standards of quality; d. Ensure that an adequate patient care plan was developed, reviewed, revised and carried out, including specifically, because Mr. Martin was exposed to COVID19 at HPHC; e. Take all reasonable and necessary precautions to ensure that Mr. Martin did not contract COVID-19; f. Provide Mr. Martin with necessary tests promptly and report those results promptly; g. Protect Mr. Martin from health and safety hazards; h. Treat Mr. Martin with respect, dignity, and without abuse.” As Plaintiffs point out, the case lies in Dr. Filart’s inaction rather than the administration of a covered countermeasure. Inaction may apply as stated in the Fourth Amendment and such a situation exists when one covered countermeasure is not administered to one individual in order to administer it to another individual. Here, Plaintiffs have not alleged and Defendant does not argue that this was a decision to provide the countermeasure to other patients instead of Mr. Martin. Accordingly, Defendant has also not shown that this is a claim relating to a covered countermeasure.

The Court notes that Defendant makes no arguments regarding the PREP Act in reply.

Thus, Defendant has not met his burden to show that the PREP Act bars the claims.

Government Code section 8659

Defendant also argues that the California counterpart to the PREP Act, Government Code section 8659(a), applies here, which immunizes health care providers from liability for services performed at the request of public officials during a state of public emergency.

This section and subsection states in full: 

(a) Any physician or surgeon (whether licensed in this state or any other state), hospital, pharmacist, respiratory care practitioner, nurse, or dentist who renders services during any state of war emergency, a state of emergency, or a local emergency at the express or implied request of any responsible state or local official or agency shall have no liability for any injury sustained by any person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained; provided, however, that the immunity herein granted shall not apply in the event of a willful act or omission.

(Cal. Gov. Code § 8659(a), emphasis added.) 

            As Plaintiffs point out, they have not alleged, and Defendant does not argue, that Dr. Filart rendered services at the request of a government agency. Further, the statute explicitly does not apply to willful acts or omissions, which Plaintiffs have alleged against Dr. Filart. (4AC ¶¶ 8, 35, 78-81, 90-98, 113-116, 120, 130.) Again, Defendant does not make any arguments regarding this contention in reply. Accordingly, Defendant has not met his burden to show that Government Code section 8659 applies.

Elder Abuse

            Defendant argues that no triable issue of material fact exists as to (1) the element of Dr. Filart having a substantial caretaking or custodial relationship with decedent, and (2) the element of abuse or neglect as to Dr. Filart.

An elder is defined as a person over 65 years of age residing in California.  (Welfare & Institutions Code section 15610.27.)  Neglect is defined as either (1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise or (2) the negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.” (Welfare & Institutions Code § 15610.57.)

The Elder Abuse Act also contains a list of conduct that is considered neglect, including the failure to provide medical care for physical and mental health needs and failure to protect from health and safety standards. (Welfare & Institutions Code § 15610.57(b)(2)-(3).) 

In Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, the California Supreme Court sustained a demurrer to a theory of elder abuse, concluding a plaintiff does not have a theory of elder-dependent abuse when the plaintiff’s relationship with the defendant is consistent with “an able-bodied and fully competent adult’s reliance on the advice and care of his or her medical providers.” (Winn, supra, 63 Cal.4th at 165.)

Winn explained that a claim for elder-dependent abuse based on a caretaker-custodian’s “‘[f]ailure to provide medical care for physical and mental health needs’” pertains to “a determination made by one with control over an elder whether to initiate medical care at all.” (Id. at 158, quoting Welf. & Inst. Code § 15610.57(b)(2) [italics in original].) Winn explained that the elder-dependent statutes were “not meant to encompass every course of behavior that fits either legal or colloquial definitions of neglect.” (Id. at 159.) Winn distinguished between medical negligence and elder-dependent abuse and cautioned against “[b]lurring the distinction between neglect under the Act and conduct actionable under ordinary tort remedies.” (Id. at 160.)

Neglect as contemplated by the Act is separate and distinct from professional negligence. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771; see also Delaney v. Baker (1999) 20 Cal.4th 23.)

Defendant argues that he was not Mr. Martin’s primary care physician in March and April 2020, and had no involvement in the care of Mr. Martin in his role as Medical Director at HPHC. He argues that he did not have a “robust caretaking or custodial relationship” directly with Mr. Martin and was never involved in Mr. Martin’s direct care as he was not the primary care physician for decedent. Defendant provides evidence that he was the Medical Director for the facility during the subject period of time and fulfilled that position pursuant to a contract. Under the contract, Dr. Filart had no patient care obligations, but would on occasion receive telephone calls on patients at the Facility, as is common in the industry, and react as appropriate, when the patient’s designated attending physician was not immediately available and the clinical concern was of urgent or emergent nature. The continuing care would remain the responsibility of the attending physician. (NOL, Exh. C, Medical Director Agreement; Exh. M, Wang Decl., ¶ 6(b).) Defendant also presents evidence that he had sold his skilled nursing practice to Dr. Alsarraf prior to 2020, and at that point in time Dr. Alsarraf took over the care of the skilled nursing patients, including Mr. Martin. (NOL, Exh. G, Edra depo. and Exh. 9 thereto, HPHC 016670 attached to depo.; Exh. F, Filart depo., 47:19-48:3, 90:18-91:16; Exh. H, C. Martin depo., 27:20-25, 81:23-82:25, 98:18-23; Exh. J, Manilay depo., 198:16-199:2, 199:10- 202:1; Exh. M, Wang Decl. ¶ 6(c).) The Court finds that Defendant has met his initial burden based on this evidence.

In opposition, Plaintiffs provide evidence that Dr. Filart is listed as Mr. Martin’s attending physician throughout his electronic medical record (“EMR”). (Brown Decl., Exh. C, EMR; DNOL, Exh. B, EMR at HPHC 000719, 000731-32, 000744, 001823-29.) He is listed as the attending physician both in electronic notes and handwritten notes. (Brown Decl., Exh. C, EMR.) Mr. Martin’s EMR contains a handwritten note indicating Dr. Filart would take over as Mr. Martin’s attending physician on June 4, 2018. (Id., Exh. D, Ltr. Re. Attending.) Further, Mr. Martin’s death certificate and amended death certificate both show Dr. Filart is the attending physician. (Id., Exh. A, Corr. Death Cert.) Nothing in the record reflects any transfers thereafter to any other attending physician, including Dr. Dhia Alsarraf. Mr. Martin’s wife Emma and daughter Kathy both frequently visited Mr. Martin prior to HPHC’s closing off visitations in March 2020, and each understood that Mr. Martin’s attending physician was Dr. Filart. (DNOL, Exh. D, Martin Depo. at 51:19; Ex. E, Sessinghaus Depo. at 45:25, 46:1, 131:3, 137:15.) Lisa understood the same. (Brown Decl., Exh. J, Gagliano Depo. at 174:20-175:14.) Dr. Filart’s initial, verified responses to Plaintiffs’ RFA indicated that he was Mr. Martin’s attending physician. (Brown Decl., Ex. B, RFA Resp.) Dr. Filart’s answer to the 4AC makes no mention of him not being the attending physician, nor does it raise any similar affirmative defense. (Id., Exh I, Answer.) Nurse Edra regularly provided medical care to Mr. Martin and believed Dr. Filart was his attending physician. (DNOL, Exh. G, Edra Depo. at 32:12, 77:25-78:2.) Juhn Cayabyab, the Administrator of HPHC at the time of Mr. Martin’s death, believed the same. (Brown Decl., Exh. E, Cayabyab Depo. [5/26/2022] at 21:1, 24:21.)

Importantly, Dr. Filart testified that it was possible he was Mr. Martin’s attending physician for a period of time before Dr. Dhia Alsarraf allegedly took over his patients. (DNOL, Exh. F, Filart Depo. at 90:18-92:2.) Dr. Filart has been unable to produce any documentation to support his assertions that he sold his practice to Dr. Alsarraf, that he ever informed anyone at HPHC that he was transferring patients to Dr. Alsarraf, or that anyone communicated the same to his patients or their families. (DNOL, Exh. F, Filart Depo. at 19:03-13, 48:18-25, 58:24-59:08.) All Health Medical Group, Dr. Alsarraf’s medical office, affirmed it has no records related to medical care of HPHC residents, transfers of residents between Dr. Filart and Dr. Alsarraf, or any agreements between Dr. Filart and Dr. Alsarraf. (Brown Decl., Exh. F, AHMG Subp.) Any transfer of patient care from Dr. Filart to Dr. Alsarraf should have been endorsed by Dr. Filart and communicated to and approved by the residents and their families; this was never done. (DNOL, Exh. H, C. Martin Depo. at 80:06-81:22, 84:04-14.) Thus, there is ample evidence that Dr. Filart was Mr. Martin’s attending physician, including an admission from Dr. Filart himself stating that he may have been the attending physician for a time, and there is no concrete evidence that the transfer of patients ever occurred or was approved of as required. Based on the foregoing evidence, the Court finds that there is a triable issue of material fact as to whether Defendant was Mr. Martin’s attending physician.

As to the issue of neglect and causation, Defendant provides the expert declaration of Dr. Wang who opines that nothing Dr. Filart did or failed to do constitutes elder abuse or neglect, and that Dr. Filart’s care and treatment did not contribute to Mr. Martin’s death. (NOL, Wang Decl.) Dr. Wang states that “[t]he record cites numerous orders issued by Dr. Filart and Dr. Alsarraf’s PA, Mr. Manilay, all appropriate to the circumstance. There was no requirement that Dr. Filart, providing urgent or emergent coverage as medical director, in lieu of Mr. Martin’s attending physician Dr. Alsarraf, physically see the patient at any time, but particularly during this period of time when the recommendation was for physicians to minimize physical contact with skilled nursing facility residents to reduce transmission among that patient population, other care providers or themselves when remote intervention was available and appropriate, as in this circumstance. Finally, Dr. Filart had no obligation to provide assistance to any patient which constitute activities of daily living - feeding, bathing, turning, etc; that personal care is the function of caregivers, not physicians who provide episodic medical evaluation and order treatment.” (Id. at ¶ 11.) The Court finds the evidence sufficient to shift the burden to Plaintiffs.

In opposition, Plaintiffs provide the expert declaration of Dr. Shneider who opines that Dr. Filart failed to meet the standard of care in treating Mr. Martin. (Brown Decl., Ex. G, Schneider Decl. at ¶ 25.) While this would generally create a triable issue as there are competing experts, the declaration does not differentiate between elder abuse neglect and medical negligence. Further, and most importantly, there is no argument or evidence as to causation. Dr. Schneider never opines that the failure to meet the standard of care caused or contributed to Mr. Martin’s death.

Accordingly, Plaintiffs fail to create a triable issue as to causation. Summary adjudication of the first cause of action is proper.

Negligence and Wrongful Death

            The Court finds that Plaintiffs fail to create a triable issue as to causation on these claims for the same reasons set forth above. Summary adjudication of the second and third causes of action is proper.

Fraudulent Concealment and Misrepresentation

            Defendant argues that no triable issue of material fact exists as to the essential elements of a fiduciary relationship and fraud. Specifically, Defendant argues that the fraud causes of action fail as a matter of law because Dr. Filart did not have a fiduciary duty to Plaintiffs or Mr. Martin as a Medical Director or physician and did not withhold information regarding COVID-19 infections at Hollywood Premier Healthcare Center or Mr. Martin’s COVID-19 positive test result.

            Although whether Dr. Filart was Mr. Martin’s treating physician or not is in dispute and a triable issue, Defendant also contends that Plaintiffs’ have presented no evidence that Dr. Filart had knowledge of a COVID-19 outbreak at HPHC during the relevant time period in question. Defendant further contends that there was no injury to Plaintiffs based on any alleged fraud because he would not have been moved home. Defendant also argues and presents evidence that HPHC, not himself, would be responsible for notifying residents or resident representatives of COVID-19 cases. Dr. Wang opines that there is no obligation of Dr. Filart, either as a treating physician or medical director to communicate the number of patients with COVID-19 at the facility - that is the role of the facility and not the physician as per CDPH mandates. (NOL, Exh. M, Wang Decl., ¶ 23.) Dr. Wang further opines that given the patient’s comorbidities and overall frailty, this was a patient at high risk of dying of COVID-19, and given the timeframe of his death, there was nothing he can see to a reasonable medical probability which could have been done to avoid him contracting COVID19 and/or dying of the disease. (Id. at ¶ 24.) Based on the foregoing, the Court finds that Defendant has met his initial burden.

            In opposition, Plaintiffs only cite to allegations in the FAC. (Opp., 12:16-21.) Plaintiffs cannot rely on allegations in their pleading as evidence. (Code Civ. Proc., § 437c, subd. (p)(2).) Accordingly, summary adjudication of the fraud causes of action is proper.

The Court therefore GRANTS the motion for summary judgment.

Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 15th day of March 2024