Judge Linda S. Marks, Case 2021-01186871 2022-10-24 Tentative Ruling

Judge: Linda S. Marks, Case: 2021-01186871, Date: 2022-10-24 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed by Farshad Farrokhian on 3/8/22

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff. (Code Civ. Proc. § 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.) The motion shall be supported by affidavits, declarations, admission, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc. § 437c(b)(1).) Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. (Code Civ. Proc. § 437c(d).)

The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support to the defense. [Citations.]

If the plaintiff does not make this showing, it is unnecessary to examine the [defendant’s] opposing evidence and the motion must be denied. [Citation.] However, if the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff’s] favor, the burden then shifts to the [defendant] to make a prima facie showing that justifies a [ruling] in the [plaintiff’s] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue. [Citation.] (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, internal quotations and citations omitted.)

All of the evidence and all of the inferences reasonably drawn therefrom must be viewed in the light most favorable to the opposing party. (See’s Candy Shops, supra, 210 Cal.App.4th at p. 900.) “Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion. [Citation.]” (Ibid.)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)

Defendant’s Objections to Plaintiff’s Evidence

Defendant, Victor Lopez (“Defendant”), filed one document consisting of objections to the Declaration of Dr. Mark Wardenburg, D.C. (Objection Nos. 1, 2) and to the Declaration of Farshad Farrokhian (Objections Nos. 3, 4).

The Court SUSTAINS all objections.

“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. [Citation.] 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. [Citation.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) Without the medical records upon which an expert relies, and without testimony providing for authentication of such records, the expert’s declaration has no evidentiary basis and no evidentiary value. (Ibid.)

“ ‘[A]n 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. [Citations.]' [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529–530.)

Although hospital records are hearsay, they can be used as a basis for an expert medical opinion.(Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.) “However, ‘a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact.’ [Citation.] ‘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.’ [Citation.] 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. [Citation.]” (Ibid.)

Here, Dr. Wardenburg does not possess the qualifications necessary to render an opinion as to whether all of Plaintiff’s injuries, namely, the asserted traumatic aortic dissection and follow up cardiologist care, were a result of the accident. Nor does Dr. Wardenburg provide any information showing that he has the qualifications to render an opinion as to whether medical bills are reasonable and necessary for all of the treatment Plaintiff received, or that the billing represents the reasonable value of medical services provided to Plaintiff.

In addition, Dr. Wardenburg’s declaration attempts to testify to the truth of the facts stated in the declaration for an improper hearsay purpose, as independent proof of the facts of what is contained in medical records, including medical billing, from numerous facilities that he states he reviewed, but such medical records were not provided to the court. There is no showing that Dr. Wardenburg has personal knowledge of any cardiac injuries or treatment thereof.

Moreover, Dr. Wardenburg’s opinions that Plaintiff’s injuries were a result of the subject accident, that the medical bills are reasonable and necessary for all of the treatment Plaintiff received, and that the billing represents the reasonable value of medical services provided to Plaintiff are rendered without a reasoned explanation of why the underlying facts, assuming they were not hearsay, lead to the ultimate conclusion.

Based on the foregoing, Dr. Wardenburg lacks the qualifications to render an opinion as whether Plaintiff had a traumatic aortic dissection, whether the latter and follow up cardiologist care were a result of the subject accident, whether medical bills are reasonable and necessary for all of the treatment Plaintiff received, or whether the billing represents the reasonable value of medical services provided to Plaintiff. The opinions in Dr. Wardenburg’s declaration concerning these issues are without evidentiary value as they are without evidentiary basis, and even if they were, are rendered without a reasoned explanation of why the underlying facts, assuming they were not hearsay, lead to the ultimate conclusion.

Plaintiff’s statement as to the injuries he suffered as a result of the subject accident and the amount of damages for medical treatment he received as a result of the injuries sustained in the subject accident are inadmissible hearsay and lack foundation.

Plaintiff’s Objections to Defendant’s Amended Evidence

Objections to Declaration of Richard Rhee

As set forth below, because Plaintiff failed to meet his initial burden as to the first issue (First Affirmative Defense), the second issue (Fourth Affirmative Defense), and the fourth issue (Fifth Affirmative Defense) supporting a denial of these issues and affirmative defenses, Defendant’s opposing evidence is not material to the disposition of the motion. Thus, the Court declines to rule on all objections to the Declaration of Richard Rhee.

First Issue for Adjudication: First Affirmative Defense for Comparative Fault of Plaintiff

The First Affirmative Defense states: As and for a separate distinct affirmative defense, this answering defendant is informed and believes and upon such information and belief alleges that plaintiff negligently operated, maintained, controlled and drove a vehicle referenced in the Complaint, and otherwise negligently failed to exercise reasonable care for plaintiff’s own safety and well-being, thereby proximately contributing to the happening of the accident and to the injuries and damages alleged; that by reason of the foregoing, any recovery on the within Complaint is barred to the extent of said negligence. (Ex. 2 to Plaintiff’s Evidence in Support (“EIS”), Defendant’s Answer at p. 2; ROA 18.) “Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.’” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809.) It’s an issue of fact, i.e. “whether a person, under the circumstances, made a reasonable use of his faculties is also a question for the jury”. (Curland v. Los Angeles County Fair Ass'n (1953) 118 Cal.App.2d 691, 695.) Notably, “a claimant's negligence contributing causally to his own injury may be considered now not as a bar to his recovery but merely as a factor to be considered in measuring the amount thereof. “ (Bradfield v. Trans World Airlines (1979) 88 Cal.App.3d 681,686.)

“The comparative fault doctrine ‘is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine “is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’ ” [Citation.]’ [Citations.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285.) “Generally, a defendant has the burden of establishing that some nonzero percentage of fault is properly attributed to the plaintiff, other defendants, or nonparties to the action. [Citation.]” (Ibid.)

Plaintiff asserts as material facts that he did not cause his injuries and did not contribute to causing his injuries. (Plaintiff’s Separate Statement of Undisputed Material Facts (“SS”), Nos. 9, 10.) As noted by Defendant, Plaintiff relies on Defendant’s responses to discovery which do not support that Plaintiff did not cause his injuries and did not contribute to causing his injuries. (Victor Lopez's Responses to Requests for Admission, Set No.: One, Response No.: 2 - Declaration of Faud Haghighi ¶¶ 8-9, Exs. 6-7 to EIS; Victor Lopez's Responses to Form Interrogatories, Set No.: Two, Response No.: 17.1 - Declaration of Faud Haghighi ¶¶ 10-11, Exs. 8-9 to EIS.) Defendant’s responses to the requests for admission and Form Interrogatory 17.1 merely state that “[a] reasonable inquiry concerning the matter . . . has been made, and the information known or readily obtainable to [Defendant] is insufficient to enable [Defendants] to admit the matter.” (See Exs. 7, 9 to EIS.)

As to these material facts, Plaintiff does not cite to Dr. Wardenburg’s declaration. To the extent that Plaintiff seeks to rely on Dr. Wardenburg’s declaration to support causation concerning any cardiac injuries and treatment, it is inadmissible as set forth above.

In addition, to the extent that Plaintiff might seek to rely on his own declaration, as to causation, he merely makes a self-serving, conclusory statement that “[a]s a consequence of this collision I suffered an aortic dissection which required me to undergo surgery.” However, such statement is inadmissible and properly objected to.

Based on the foregoing, Plaintiff’s facts are not supported by the evidence or admissible evidence, and Plaintiff fails to meet his initial burden to negate an essential element of the affirmative defense, i.e., to negate that Plaintiff contributed to causing the aortic dissection, to show that he is entitled to judgment on the defense as a matter of law. In turn, the Court need not examine Defendant’s evidence submitted in opposition.

Tentative Ruling: The motion as to the first issue and the First Affirmative Defense is DENIED.

Second and Third Issues for Adjudication: Second, Third, and Fourth Affirmative Defenses

Defendant’s Second through Fourth Affirmative Defenses are alleged as follows:

SECOND AFFIRMATIVE DEFENSE [Second Issue]

As and for a separate distinct affirmative defense, this answering defendant alleges that plaintiff is barred from any recovery herein as to this answering defendant, in that any damage proven to have been sustained by plaintiff herein would be the direct and proximate result of the independent negligence and unlawful conduct of independent third parties, or their agents, and not any act or omission on the part of this answering defendant.

THIRD AFFIRMATIVE DEFENSE [Third Issue]

As and for a separate and distinct affirmative defense, this answering defendant alleges that the complaint fails to state facts sufficient to constitute a cause of action against this answering defendant.

FOURTH AFFIRMATIVE DEFENSE [Second Issue]

As and for a separate and distinct affirmative defense this answering defendant alleges that should this defendant be found liable to plaintiff, based upon any theory or cause of action contained in the complaint, this answering defendant shall, in relation to non-economic damages pursuant to Civil Code, section 1431.2, be liable only for the amount of non-economic damages allocated to this defendant, in direct proportion to this defendant's percentage of fault, as determined by the trier of fact, and this answering defendant is entitled to and shall request a separate judgment to be rendered against this answering defendant. (Ex. 2 to EIS, Defendant’s Answer at pp. 2-3; ROA 18.)

Plaintiff contends that the Second Affirmative Defense for Third Party Negligence and Fourth Affirmative Defense for Apportionment of Non-Economic Damages are inapplicable and that Defendant is solely liable as no other parties were involved in the collision.

It is undisputed that Plaintiff and Defendant were the only parties involved in the subject accident. (Defendant’s Amended Separate Statement of Material Facts in Opposition to Plaintiff’s Motion for Summary Adjudication (“DSS”) at p. 15, No. 5.) Thus, Plaintiff negates an essential element of the defenses alleging that the negligence of an independent third party caused Plaintiff’s damages, i.e., Plaintiff’s aortic dissection.

Although the evidence presented by Defendant permits a reasonable inference of Plaintiff’s own negligence in causing the aortic dissection, Defendant fails to present any evidence to show that an independent third party contributed to causing Plaintiff’s aortic dissection. Thus, Defendant fails to create a triable issue of fact as to the second issue and the Second Affirmative Defense.

Tentative Ruling: The motion as to the second issue and the Second Affirmative Defense is GRANTED.

As to the second issue and the Fourth Affirmative Defense (Apportionment of Non-Economic Damages), Civil Code section 1431.2 states, in relevant part: (a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount. (Civ. Code, § 1431.2(a).)

Proposition 51 modified the doctrine of joint and several liability in tort cases, and added section 1431.2 of the Civil Code which “provides that a defendant’s liability for noneconomic damages is limited ‘to a proportion commensurate with that defendant’s personal share of fault.’ ” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367.) “In determining a defendant’s share of fault, the court may consider other joint tortfeasors’ degree of fault for the plaintiff’s injuries and reduce the defendant’s share accordingly. A defendant may attempt to reduce his or her share of liability for noneconomic damages by seeking to add nonparty joint tortfeasors. But unless there is substantial evidence that an individual is at fault, there can be no apportionment of damages to that individual.” (Ibid.) The “damages ‘must be apportioned among [the] “ ‘universe’ of tortfeasors’ ” including “nonjoined defendants” ’ and those who have settled with the plaintiffs. [Citations.]” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1399.) As stated above, Defendant fails to present any evidence to show that a third party caused Plaintiff’s aortic dissection. It appears that the Fourth Affirmative Defense as alleged by Defendant is apportionment between defendants or another tortfeasor, and there is only evidence of Plaintiff’s own fault, and no evidence of the fault of another defendant or third party.

Tentative Ruling: The motion for summary adjudication as to the second issue and the Fourth Affirmative Defense is GRANTED.

As to the third issue and Third Affirmative Defense, the material facts asserted by Plaintiff are all undisputed by Defendant. (DSS at pp. 20-21, Nos. 1-4.) It is undisputed that the Complaint alleges that Plaintiff was seat belted and driving on the 57 south freeway, that Plaintiff was rear ended at a high rate of speed by Defendant, and that Plaintiff has incurred physical injury and medical damages as a consequence of the subject accident. (DSS at pp. 20-21, Nos. 1-3.) Thus, the Complaint sufficiently alleges causes of action for motor vehicle negligence.

Defendant does not include any additional material facts in opposition as to Third Affirmative Defense, Defendant provides no opposition as to the Third Affirmative Defense thereby implicitly conceding that Plaintiff’s claims are sufficiently pled, and Defendant fails to create a triable issue of fact as to whether the causes of action are sufficiently alleged in the Complaint. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].)

Tentative Ruling: The motion as to the third issue for adjudication concerning Defendant’s Third Affirmative Defense is GRANTED.

Fourth Issue: Fifth Affirmative Defense for Failure to Mitigate Damages

Defendant’s Fifth Affirmative Defense alleges:

FIFTH AFFIRMATIVE DEFENSE

As and for a separate distinct affirmative defense, this answering defendant alleges that plaintiff had a duty to mitigate damages and failed to do so and thereby is barred from recovery of damages flowing from the failure to mitigate. (Ex. 2 to EIS, Defendant’s Answer at p. 3; ROA 18.)

Plaintiff contends that as a consequence of the subject accident, he suffered an aortic dissection which required him to undergo surgery, as well as injuries to his lumbar, cervical and thoracic spine, both elbows, and his right tricep; that Plaintiff underwent treatment for these alleged injuries, incurred $156,634.69 in medical damages, that “[t]he medical bills incurred by Plaintiff as a result of the subject accident were reasonable and necessary for examining, diagnosing and treating Plaintiff’s injuries resulting from this incident,” and that “[t]he medical billing incurred by Plaintiff represents the reasonable value of the medical services provided to Plaintiff.” (SS, Nos. 6, 8-11.)

Plaintiff relies on Dr. Wardenburg’s declaration and statements in Plaintiff’s own declaration to support these facts, but the portions of the declarations upon which Plaintiff relies are not admissible to prove the fact asserted. Thus, the material facts are not supported by evidence such that Plaintiff has not met his initial burden and it is unnecessary for the Court to examine Defendant’s opposing evidence.

Further, in the Reply to the Amended Opposition, Plaintiff concedes triable issues of fact with respect to this issue. (Reply, 3:22-24; ROA 96.)

Tentative Ruling: The motion as to the fourth issue and the Fifth Affirmative Defense is DENIED.

Defendant to give notice.