Judge Holly J. Fujie, Case Number: 23STCV07922, Date: 2025-04-02 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.

MOVING PARTY: Defendant Levon Ter-Bagdasarian, Nurse Practitioner (“Ter-Bagdasarian”)

Plaintiff Betty Brawner (“Plaintiff”) filed this action on April 10, 2023. The action arises out of alleged misconduct that occurred during Plaintiff’s admission at two skilled nursing facilities. The operative First Amended Complaint (“FAC”) alleges: (1) elder/dependent adult abuse violation of Welfare and Institutions Code Section 15610, et seq.; (2) breach of fiduciary duty; (3) negligence; (4) negligence; (5) violation of Patient’s Bill of Rights, (6) negligence; (7) negligence; and (8) elder abuse.

On December 6, 2024, Ter-Bagdasarian filed a motion for summary judgment (the “Ter-Bagdasarian MSJ”) of Plaintiff’s sixth cause of action for negligence. On March 21, 2024, Plaintiff filed a Notice of Non-Opposition. The Court has considered the moving papers.

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Pursuant to Ter-Bagdasarian’s request, the Court takes judicial notice of the following:

(1) Plaintiff’s January 5, 2024 FAC filed in this action; and (2) Ter-Bagdasarian’s February 26, 2024 Answer to the FAC. (RJN, Nos. 1-2.)

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure (“CCP”), § 437c, subd. (c).)

The moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Id.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.” (CCP § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.”¿(Ibid.)¿“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.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

Ter-Bagdasarian argues that Plaintiff cannot establish the sixth cause of action for negligence because Ter-Bagdasarian did not breach any duty owed to Plaintiff and because Ter-Bagdasarian’s conduct did not cause Plaintiff’s injury. Plaintiff asserts that she was misdiagnosed and given improper medications, which led to her suffering a stroke. (FAC, ¶¶ 114-115.) There are no specific facts of conduct that Ter-Bagdasarian breached any duty in his role performing mental psychiatric examinations. (SSUMF, Nos. 8, 16-18, 20.) Ter-Bagdasarian did not prescribe or un-prescribe any medication to Plaintiff. (SSUMF, Nos. 5-7.) There are no facts showing that Ter-Bagdasarian’s conduct contributed to Plaintiff’s injury. (SSUMF, Nos. 13, 19-10.) Thus, Ter-Bagdasarian has met his burden to make a prima facie showing that no triable issue of material fact exists as to Plaintiff’s cause of action for negligence. Plaintiff did not file an opposition and did not provide evidence of a disputed material issue of fact. Accordingly, the Ter-Bagdasarian MSJ is GRANTED.

MOVING PARTY: Defendants Karpus Medical Group, Inc. and Eugene Karpus, M.D. (“Karpus Defendants”)

On November 26, 2024, Karpus Defendants filed a motion for summary judgment (the “Karpus MSJ”) of Plaintiff’s sixth cause of action for negligence. On March 21, 2024, Plaintiff filed a Notice of Non-Opposition. The Court has considered the moving papers.

The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

Karpus Defendants argue that Plaintiff cannot establish that the Karpus Defendants breached the duty of care owed to Plaintiff or establish that they caused Plaintiff’s injuries. In support of their argument, Karpus Defendants present the expert opinion of Psychiatrist Daniel Auerbach, M.D. (“Dr. Auerbach”). Dr. Auerbach declares that the care and treatment provided to Plaintiff by the Karpus Defendants was at all times appropriate and within the standard of care. (Auerbach Decl., ¶¶ 8-12; UDF Nos. 3-4, 15.) Dr. Auerbach further declares that to a reasonable medical probability nothing the Karpus Defendants did or failed to do caused or contributed to Plaintiff’s alleged injuries. (Auerbach Decl., ¶¶ 13-15; UDF Nos. 3-4, 16.) Thus, Karpus Defendants have met their burden to make a prima facie showing that no triable issue of material fact exists as to Plaintiff’s cause of action for negligence. Plaintiff did not file an opposition and did not provide evidence of a disputed material issue of fact. Accordingly, the Karpus MSJ is GRANTED.

Defendant Levon Ter-Bagdasarian, N.P.’s Motion for Summary Judgment is GRANTED.

Defendants Karpus Medical Group, Inc. and Eugene Karpus, M.D.’s Motion for Summary Judgment is GRANTED.

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.

Hon. Holly J. Fujie

Judge of the Superior Court