Judge: Lisa K. Sepe-Wiesenfeld, Case: 20STCV26908, Date: 2023-11-17 Tentative Ruling
Case Number: 20STCV26908 Hearing Date: January 5, 2024 Dept: N
TENTATIVE RULING
Defendant Corina Godoy-Farias, LVN’s Motion for Summary Judgment, or in the Alternative, Summary
Adjudication is GRANTED as to the first cause of action and otherwise DENIED.
Defendant Privilege Home Health Care, Inc.’s Motion for Summary Judgment, or in the Alternative, Summary
Adjudication is GRANTED.
Defendant Privilege Home Health Care, Inc. shall prepare,
serve, and submit a proposed judgment as per statute.
Moving parties to give notice.
REASONING
Defendant Corina Godoy-Farias, LVN’s Motion for Summary Judgment, or in the Alternative,
Summary Adjudication
Defendant Corina Godoy-Farias, LVN
(“Defendant Nurse Godoy-Farias”) moves the Court for an order granting summary
judgment or adjudication in her favor as to Plaintiffs Ricardo Vasquez and
Fidela Vasquez (“Plaintiffs”)’s claims for fraud – falsification of medical
records, negligence – medical malpractice, and negligent infliction of
emotional distress against her. Plaintiffs initially failed to file a timely
opposition to the motion, but when the motion came on for hearing on November
17, 2023, the Court granted Plaintiffs relief to oppose the motion, continuing
the hearing to the present date.
Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar
v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)
“On a motion for summary judgment, the initial burden is
always on the moving party to make a prima facie showing that there are no
triable issues of material fact.” (Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant
moving for summary judgment or summary adjudication “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 cause of action . . . cannot be established, or that
there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c,
subd. (p)(2).) “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.” (Ibid.) “If the plaintiff cannot do so,
summary judgment should be granted.” (Avivi
v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“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.) “[T]he court must
consider all of the evidence set forth in the papers (except evidence to which
the court has sustained an objection) . . . in the light most favorable to the
party opposing summary judgment.” (Avivi,
supra, 159 Cal.App.4th at p. 467; see
also Code Civ. Proc., § 437c, subd. (c).)
Statute of
Limitations, Breach of the Standard of Care, and Causation of Harm
Defendant Nurse Godoy-Farias first
contends that she is entitled to summary judgment in her favor because Plaintiffs’
claims are barred by the statute of limitations, her conduct complied with the
standard of care at all times, and there is no causal connection between
Defendant Nurse Godoy-Farias’s conduct and Decedent
Mauricio Vasquez (“Decedent”)’s death or Plaintiffs’ injuries.
Notably, the statute of limitations is an affirmative
defense (Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1191), and rule 3.1350(d)(1)(A) of
the California Rules of Court provides that “[t]he Separate Statement of
Undisputed Material Facts in support of a motion must separately identify . . .
[e]ach cause of action, claim for damages, issue of duty, or affirmative
defense that is the subject of the motion.” Defendant Nurse
Godoy-Farias failed to identify the statute of limitations as an
affirmative defense in her separate statement. Defendant Nurse
Godoy-Farias also fails to state in her separate statement that she
seeks judgment on the grounds that her conduct complied with the standard of
care at all times or that there is no causal connection between Defendant Nurse Godoy-Farias’s conduct and Decedent’s death or
Plaintiffs’ injuries. “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.)
Defendant Nurse Godoy-Farias fails
to mention the second or fourth causes of action in her separate statement, and
she makes no mention of the standard of care or causation as bases for judgment
or adjudication in her separate statement, instead using only the heading
“Summary Judgment” with identification of issues in the “Summary Adjudication”
portion of her separate statement focusing on the first cause of action and,
again, leaving the issues of the statute of limitations, standard of care, and
causation off the list of issues for which she seeks adjudication. In her
reply, she argues that there is no requirement to separately list each cause of
action in the summary judgment portion of the separate statement, but she also
fails to include any argument in her memorandum of points and authorities as to
the second and fourth causes of action or state any basis for adjudication of
these claims beyond the application of the statute of limitations. It is not
the Court’s place to determine the basis, if any, for granting summary
adjudication of a claim where the moving party has failed to make that basis
clear in his or her motion. Accordingly, Defendant Nurse
Godoy-Farias’s motion for summary judgment is DENIED on procedural
grounds. Given that Defendant Nurse Godoy-Farias’s
motion only identifies issues for the first cause of action and fails to
mention the second and fourth causes of action, the Court focuses its analysis
on Plaintiffs’ first cause of action for fraud – falsification of medical
records.
First Cause of
Action: Fraud – Falsification of Medical Records
In the first cause of action, Plaintiffs allege that
Defendant Nurse Godoy-Farias falsified Decedent’s
original Medication Profile dated July 12, 2017, by deleting Ceftriaxone from
Decedent’s allergies listing, and had Plaintiffs known of the falsity in the
records, they would have brought this action earlier. (First Am. Compl. ¶¶ 33-34.)
Plaintiffs allege that Defendant Nurse Godoy-Farias
intended to make it appear as though Decedent’s allergy to Ceftriaxone was
unknown by Defendant Nurse Godoy-Farias at the time
the medication was administered. (First Am. Compl. ¶ 36.)
Plaintiffs’ purported harm is the inability to timely file a
lawsuit, but there is no basis for the trier of fact to conclude that damages
flowed from this because if Plaintiffs can establish fraud, Plaintiffs’ claims
would have been tolled due to fraud, such that the trier of fact could not
reasonably conclude that the fraud prevented Plaintiffs from timely filing
their complaint. Further, this claim focuses on Plaintiffs’ own injuries, such
that the trier of fact could not construe it as a survival claim focusing on a
different harm other than inability to file this action. (See Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1264-1265 [wrongful death claims relate to a plaintiff’s own
injuries, which is separate and distinct from a survivor action seeking
compensation for the decedent’s pre-death injuries].) Thus, Plaintiffs’ claim
is circular such that the trier of fact lacks a basis to conclude that
Plaintiffs were denied the opportunity to timely file this action because if
the medical records were falsified, the fraud claim would have been tolled, and
Plaintiffs’ claim would be timely. Plaintiffs have failed to sufficiently
allege a claim for fraud against Defendant Nurse
Godoy-Farias, such that the trier of fact could not reasonably find in Plaintiffs’
favor on this claim.
Even if Plaintiffs had properly stated a claim for fraud
against Defendant Nurse Godoy-Farias, Defendant Nurse Godoy-Farias also presents evidence that she asked
Decedent and Plaintiffs whether Decedent was allergic to Ceftriaxone (Def.’s
UMF Nos. 22-27, 55); there is no evidence that Defendant Nurse
Godoy-Farias changed or altered the information in the medical records
as to Decedent’s drug allergies (Def.’s UMF Nos. 35, 36, 54); Plaintiffs had
exclusive access and control of the “original” medical records since August 30,
2017, and the medical records included a listed allergy to Ceftriaxone (Def.’s
UMF Nos. 36, 37); and Plaintiffs told Defendant Nurse
Godoy-Farias that Decedent was not allergic to Ceftriaxone (Def.’s UMF Nos.
22-27). This evidence shows there is no triable issue of material fact as to
Plaintiffs’ claim that Defendant Nurse Godoy-Farias falsified
the medical records. In opposition, Plaintiffs provide evidence that Defendant Nurse Godoy-Farias learned that Decedent would need to be
monitored after the injection (Pls.’ UMF No. 23), Defendant Nurse Godoy-Farias met with an employee of Privilege Home
Health to talk about this action (Pls.’ UMF Nos. 34, 54, 56, 63), and another
party removed an allergy to Ceftriaxone from the record (Pls.’ UMF Nos. 54, 56,
63), but this does not show that Defendant Nurse
Godoy-Farias falsified the medical records; at best, the evidence could
show that another party falsified the records, but Plaintiffs have failed to
provide any evidence that this party, Defendant Nurse
Godoy-Farias, was responsible for the falsification as alleged in the First
Amended Complaint. Accordingly, Defendant Nurse
Godoy-Farias’s motion for summary adjudication is GRANTED as to the
first cause of action.
Evidentiary Objections
Defendant Nurse Godoy-Farias objects to
the entire declaration of Ashkan Lee Naraghi, MD. The Court declines to rule on
this objection as the declaration was not material to the Court’s ruling
herein. Defendant Nurse Godoy-Farias also objects to
the facts contained within the deposition transcripts of Ricardo Vasquez and Corina
Godoy-Farias, LVN. Defendant Nurse Godoy-Farias’
objections are OVERRULED, as she has failed to identify the specific facts with
which she takes issue, and there is no basis to entirely disregard these
depositions.
Defendant Privilege Home Health Care, Inc.’s Motion for Summary Judgment, or in the Alternative, Summary
Adjudication
Statute of
Limitations
Defendant Privilege Home Health Care, Inc. (“Defendant Privilege
Home Health Care”) first contends that it is entitled to summary judgment in
its favor because Plaintiffs’ claims for negligence and negligent infliction of
emotional distress are barred by the statute of limitations.
Code of Civil
Procedure section 340.5 provides that “[i]n an action for injury or death
against a health care provider based upon such person’s alleged professional
negligence, the time for the commencement of action shall be three years after
the date of injury or one year after the plaintiff discovers, or through the
use of reasonable diligence should have discovered, the injury, whichever
occurs first.” Here, Plaintiffs allege that Decedent was injected with Ceftriaxone
on August 30, 2017 (First Am. Compl. ¶¶ 19, 20), Decedent died on July 12, 2018
(First Am. Compl. ¶ 25), and Plaintiffs filed this action on July 16, 2020.
Plaintiffs argue the statute of limitations was tolled due to falsification of
the medical records, i.e., Decedent’s allergy to Ceftriaxone had been removed
from the records, such that the time to file this action was tolled until
Plaintiffs discovered the correct records and determined the other records were
fraudulent. However, Defendant Privilege Home Health Care provides evidence that
each Plaintiff stated in discovery responses that they suspected wrongdoing on
August 30, 2017, and they served a notice of intent to sue on June 20, 2018.
(Def.’s UMF Nos. 14, 15.) While Plaintiffs rely on their discovery of a “green
folder” with the correct records on July 23, 2019, when they sought to retain
counsel (First Am. Compl. ¶ 29), Plaintiff Ricardo Vasquez testified that
Defendant Nurse Godoy-Farias had left the folder at home on
the day the incident occurred, and his wife kept the folder at home after that
date (Def.’s UMF Nos. 18, 19). Plaintiff Fidela Vasquez testified that the
folder was in her home when Defendant Nurse Godoy-Farias
later tried to pick up the folder but Plaintiffs declined to give it to her (Def.’s
UMF No. 20).
“In order to rely on the discovery rule for delayed accrual
of a cause of action, a plaintiff whose complaint shows on its face that his
claim would be barred without the benefit of the discovery rule must
specifically plead facts to show (1) the time and manner of discovery and (2)
the inability to have made earlier discovery despite reasonable diligence.” (Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797, 808 [quotation marks and brackets omitted].) “A plaintiff
seeking to utilize the discovery rule must plead facts to show his or her
inability to have discovered the necessary information earlier despite
reasonable diligence. This duty to be diligent in discovering facts that would
delay accrual of a cause of action ensures that plaintiffs who do ‘wait for the
facts’ will be unable to successfully avoid summary judgment against them on
statute of limitations grounds.” (Id.
at p. 815, citation omitted.)
The evidence provided by Defendant Privilege Home Health
Care allows it to show no triable issue of material facts exists as to whether
Plaintiffs’ claims are barred by the statute of limitations as Plaintiffs had
the green folder in their residence since the date of injury, such that they
could have reviewed it and learned the facts informing their claims on that
date, but they did not file this action until nearly three years later. In
opposition, Plaintiffs dispute their ability to find the folder by stating that
the records were kept in a separate unit where Decedent resided, and they did
not return to the unit until one year after Decedent’s death. (Pls.’ UMF Nos. 18-20.)
Plaintiffs essentially argue that they could not have discovered the facts
because they chose not to enter a portion of their residence, but the Court
cannot conclude that choosing not to enter a portion of a residence constitutes
a reasonable failure to learn informative facts, and Plaintiffs provide no
legal authority requiring such a conclusion. Put simply, Plaintiffs had access
to the folder; they simply chose not to access it. This does not establish an
inability to learn the necessary information as required to invoke the delayed discovery
doctrine.
Accordingly, there is no triable issue as to whether
Plaintiffs’ claims for negligence and negligent infliction of emotional
distress are barred by the statute of limitations because Plaintiffs had access
to the green folder with informative facts on August 30, 2017, but they failed
to file this action nearly three years later, almost two years beyond the
statute of limitations. Thus, Defendant Privilege Home Health Care’s motion for
summary adjudication is GRANTED as to the second and
fourth causes of action, and the motion for summary judgment is therefore
GRANTED.
Evidentiary Objections
Defendant Privilege Home Health
Care filed 68 pages of evidentiary objections to evidence submitted in support
of Plaintiffs’ opposition. The Court advises the parties that excessively
lengthy objection documents, largely consisting of boilerplate recitations of
legal standards, are not helpful to the Court and preclude any meaningful
consideration of each individual objection. The Court has a limited amount of
time to review each motion before it, and the purpose of evidentiary objections
is to exclude improper evidence that affects the outcome of the motion, not to
make as many objections as possible in as lengthy a manner as possible. (See Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“we encourage parties to raise
only meritorious objections to items of evidence that are legitimately in
dispute and pertinent to the disposition of the summary judgment motion,” i.e.,
“litigants should focus on the objections that really count”].) The Court also
advises the parties to make themselves familiar with rule 3.1354(b) of the
California Rules of Court, which sets forth the required format for evidentiary
objections; boilerplate statements of legal standards are not included therein.
In any event, Defendant Privilege Home Health Care’s Objection Nos. 27, 28, and
29 are OVERRULED. The Court declines to rule on the other objections, as they
were not material to the Court’s ruling herein.
Conclusion
Defendant Corina Godoy-Farias, LVN’s Motion for Summary Judgment, or in the Alternative, Summary
Adjudication is GRANTED as to the first cause of action and otherwise DENIED. Defendant
Privilege Home Health Care, Inc.’s Motion for Summary
Judgment, or in the Alternative, Summary Adjudication is GRANTED. Defendant
Privilege Home Health Care, Inc. shall prepare, serve, and submit a proposed
judgment as per statute.