Judge Holly J. Fujie, Case 21STCV14752 2023-02-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This survivor action arises out of alleged misconduct that resulted in Plaintiff’s death during his hospitalization at Moving Defendant’s facility. Plaintiff’s complaint (the “Complaint”) alleges violations of the Elder Abuse and Dependent Adult Civil Protection Act (the “Act”).

In relevant part, the Complaint alleges: on February 1, 2021, Plaintiff was admitted as a patient at Moving Defendant’s hospital because he suffered from stage four liver cancer, was having difficulty breathing, and was experiencing pain. (Complaint ¶ 17.) Plaintiff stayed overnight for testing and pain management and was scheduled to be released on hospice care on February 3, 2021. (Complaint ¶¶ 18-29.) On or about February 3, 2021, while still admitted as Moving Defendant’s patient, Plaintiff fell; afterward, a CT scan was performed and it was determined that he had a brain hemorrhage. (Complaint ¶¶ 20-21.) On or about February 5, 2021, it was decided that Plaintiff should remain at the hospital to be kept comfortable for the remainder of his life. (Complaint ¶ 24.) He was placed on oxygen and provided morphine. (Complaint ¶ 25.) On or about February 7, 2021, a hospital staff member removed Plaintiff’s oxygen mask for cleaning and turned off the oxygen machine. (Complaint ¶ 26.) Plaintiff died later that day. (Complaint ¶ 29.)

Moving Defendant filed a motion for summary judgment and/or adjudication (the “Motion”) on the grounds that there are no triable issues of fact that its conduct was consistent with the standard of care and that it did not cause Plaintiff’s injuries.

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.) California Code of Civil Procedure (“CCP”) 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.)

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. (CCP § 437c, subd. (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. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The elements of a claim for elder abuse under the Act are that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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). (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07.)

Moving Defendant argues that its evidence establishes that it acted within the standard of care and did not cause Plaintiff’s death, rendering Plaintiff’s claim unmeritorious as a matter of law. Plaintiff’s opposition (the “Opposition”) argues that the Motion does not satisfy Moving Defendant’s burden to demonstrate its entitlement to summary judgment and that alternatively, Plaintiff’s evidence is sufficient to raise a triable issue of disputed fact.

A motion for summary judgment shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. (CCP § 437c, subd. (b)(1); see California Rules of Court (“CRC”), r. 3.1350.) In addition, each material fact set forth in the separate statement shall be followed by a reference to the supporting evidence. (CCP § 437c, subd. (b)(1).) Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. (CRC, r. rule 3.1350(d)(3).) The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.) Separate statements permit trial courts to expeditiously review complex motions for summary judgment to determine quickly and efficiently whether material facts are disputed. (Id.) The court is not required to consider evidence that is not disclosed in a party’s separate statement. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 314.) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1209.)

In support of the Motion, Moving Defendant filed a Separate Statement of Undisputed Material Facts (the “Separate Statement”). The Separate Statement includes a total of three purportedly undisputed material facts (the “UMFs”). The first UMF is a summary of the claims asserted in the Complaint. The remaining UMFs recite the legal conclusions that: Moving Defendant acted within the applicable standard of care; and Moving Defendant’s care and treatment of Plaintiff did not cause Plaintiff’s injuries. Both facts cite to portions of the Declaration of Moving Defendant’s expert, Ryan Klein, M.D. (“Klein Decl.”) that state Klein’s conclusions. (See Klein Decl. ¶¶ 4-5.) The Separate Statement does not include or cite to the underlying facts of Plaintiff’s treatment or facts that establish the applicable standard of care and thus does not clearly isolate the facts relied on by the Motion.

In addition to the conclusory presentation of Moving Defendant’s evidence in the Separate Statement, Plaintiff argues that the Klein Declaration fails to set forth sufficient evidence to satisfy Moving Defendant’s burden as the moving party. The Court finds Plaintiff’s arguments persuasive.

A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert's opinion will assist the trier of fact. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. (Id.) Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. (Id.)

Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-25.) Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule. (Id. at 742.) Such records, however, must be properly authenticated. (Id.)

The Klein Declaration provides that Klein based his conclusions on his review of Moving Defendant’s records. (Klein Decl. ¶ 3.) The Klein Declaration does not, however, include the records that Klein reviewed to render his opinion. Although the Motion includes a declaration from Moving Defendant’s counsel that includes the medical records as an exhibit (Declaration of Carter R. Taylor (“Taylor Decl.”) ¶ 2, Exhibit 1), the Taylor Declaration does not provide that the records included as Exhibit 1 are the same records reviewed by Klein. Nor does the Taylor Declaration properly authenticate the medical records. (See Taylor Decl. ¶ 2; Evid. Code § 1271.) The Klein Declaration is therefore based on assumptions of fact that are without evidentiary support and lack evidentiary value. (See Garibay v. Hemmat, supra, 161 Cal.App.4th at 743.)

Furthermore, the Klein Declaration concludes that Moving Defendant’s actions were consistent with the standard of care but does not provide any information regarding the applicable standard of care and what conduct was required to meet it. As a result, even if Moving Defendant had provided properly authenticated evidence of the medical records Klein reviewed, the Klein Declaration would be legally insufficient. (See Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 665.)

Based on the foregoing, the Court finds that the Klein Declaration does not provide admissible evidence to support Moving Defendant’s arguments. Absent the Klein Declaration, the Motion lacks evidentiary support for Moving Defendant’s arguments.[1] Moving Defendant has thus failed to satisfy its burden of establishing no triable issues of material fact that entitle it to summary judgment. The Court therefore DENIES the Motion.[2] .

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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.

[1] The Court notes that Moving Defendant’s reply brief (the “Reply”) does not respond to the Opposition’s procedural arguments.

[2] The Court has not ruled on Moving Defendant’s objections to Plaintiff’s Opposition since it failed to satisfy its initial burden.