Judge: Keri G. Katz, Case: 37-2021-00050417-CU-MM-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2021-00050417-CU-MM-CTL DELGADO VS DEPENDABLE NURSING LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Dependable Nursing, LLC's request for judicial notice is GRANTED. Plaintiffs' evidentiary objections are all overruled for failure to comply with California Rules of Court, Rule 3.1354(b).

The court then rules as follows. Defendant Dependable Nursing, LLC's motion for summary judgment is GRANTED.

Preliminarily, Dependable Nursing raises the procedural issue of the timeliness of the filing and service of Plaintiffs' opposition papers. The court exercises its discretion in favor of considering Plaintiffs' opposition papers.

The complaint alleges one cause of action for 'Health Care Provider Negligence Leading to Injury or Death.' Dependable Nursing raises several grounds for summary judgment. As set forth in Dependable Nursing's notice of motion: Defendant moves for an Order granting summary judgment on either of the following distinct grounds:  Defendant has no liability for any of the claims being alleged against it, due to its immunity under Section 8659 of the Government Code. The visiting nurse was working as a licensed vocational nurse ('LVN') at the time of the home nursing care visit. In that capacity, at that place and at that time, he was rendering care during a state of emergency imposed by State of California Governor Gavin Newsom and the risk imposed on the visiting nurse as an 'essential worker' was covered by the immunity of Section 8659.

 Defendant has no liability to Plaintiffs under the single cause of action for Medical (Professional) Negligence based upon the undisputed facts demonstrating that: (i) the services provided by Defendant did not, at any point in time, fall below the applicable standard of care, within a reasonable degree of medical probability; and (ii) no negligent act and/or omission on the part of Defendant, within a reasonable degree of medical probability, caused or contributed to Plaintiffs' alleged injuries.

The court addresses only the issue of causation as the court finds this issue dispositive.

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2975859  5 CASE NUMBER: CASE TITLE:  DELGADO VS DEPENDABLE NURSING LLC [IMAGED]  37-2021-00050417-CU-MM-CTL As Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 explains, [t]he law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. ( Morgenroth v. Pacific Medical Center, Inc., supra., at p. 533; Johnston v. Brother (1961) 190 Cal.App.2d 464, 473 [12 Cal.Rptr. 23]; Pacific Employers Ins. Co. v. Industrial Acc.

Com. (1960) 182 Cal.App.2d 162, 165 [5 Cal.Rptr. 738].) Jones, 163 Cal.App.3d at 402–403.

Dependable Nursing submits the Declaration of Howard Pitchon, M.D., a physician board certified in Internal Medicine and Infectious Disease, who, after setting forth his qualifications and the materials he reviewed, states: 8. During the time period of October 2020, the COVID-19 pandemic was widespread and raging with thousands of people in the greater San Diego community infected with the SARS CoV-2 virus. Up to 50% of these infected individuals were without symptoms yet still able to spread the infection. Under these circumstances, it would not be possible to determine the exact source of the exposure of an individual without specific, highly technical testing of viral isolates from infected individuals to determine the exact source of the infection which was not determined in this case.

Plaintiffs fail to submit any expert testimony refuting Dr. Pitchon's opinion as to the only method by which to determine whether Plaintiffs were infected with COVID-19 as a result of their exposure to Charlie.

Plaintiffs also fail to offer evidence establishing that the testing of viral isolates referred to by Dr. Pitchon was performed.

The court is not persuaded by any of the arguments Plaintiffs raise. Plaintiffs do not address Dr.

Pitchon's opinion as to the testing of viral isolates. Although Plaintiffs object to Dr. Pitchon's declaration, as set forth above, the court overrules these objections. Even were the court to consider Plaintiffs' objections as to ¶ 8, the objections would still be overruled as the court finds Dr. Pitchon, who is board certified in Infectious Disease, is qualified to state opinions as to the transmission of infectious diseases and testing methodologies associated therewith and that Dr. Pitchon provides sufficient foundation for the opinion stated. Plaintiff argues that Dependable Nurses does 'not refute the real possibility that Plaintiffs contracted COVID from the one person they were in contact with who was later confirmed to be positive for COVID' (Charlie). However, as set forth above, '[m]ere possibility alone is insufficient' to establish causation. It is Plaintiffs' burden to prove causation within a reasonable medical probability based upon competent expert testimony. Plaintiffs fail to offer the required expert testimony. Absent such evidence, the court finds Plaintiffs fail to establish triable issues of material fact as to whether Dependable Nursing caused Plaintiffs to contract COVID-19 and/or caused or contributed to Plaintiffs' alleged injuries.

This ruling disposes of this case in its entirety.

The court orders Dependable Nursing to submit a proposed judgment within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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