Judge: Lisa R. Jaskol, Case: 20STCV43287, Date: 2023-06-20 Tentative Ruling

Case Number: 20STCV43287    Hearing Date: January 8, 2024    Dept: 28

Having considered the moving papers and the notices of non-opposition, the Court rules as follows. 

BACKGROUND 

On November 12, 2020, Plaintiff Hayk Kazanchyan, by and through his guardian ad litem, Leyla Tovmasyan (“Plaintiff”), filed this action against Defendants Glendale Adventist Medical Center, Shirley Chan, M.D. (“Dr. Chan”), Mona Chung, M.D. (“Dr. Chung”), and Does 1-100 for negligence. 

On March 2, 2021, Defendant Glendale Adventist Medical Center dba Adventist Health Glendale (“Adventist”), erroneously named and served as Glendale Adventist Medical Center, filed an answer. 

On March 4, 2021, Chan filed an answer. 

On June 3, 2022, Plaintiff amended the complaint to add Defendants USC Perinatal Group, Maternal-Fetal Medicine as Doe 1 and Marc lncepi, M.D. as Doe 2. 

On July 20, 2022, Defendants USC Care Medical Group, Inc. dba USC Perinatal Group, sued as Doe 1 and erroneously sued and served as USC Perinatal Group, Maternal-Fetal Medicine (“USC”), and Marc Incerpi, M.D., sued as Doe 2 and erroneously sued as Marc Incepi, M.D. (“Dr. Incerpi”), filed an answer. 

On June 20, 2023, the Court granted Plaintiff’s motion for trial preference. The Court set the trial for February 5, 2024. 

On August 8, 2023, USC and Dr. Incerpi (“Moving Defendants”) filed motions for summary judgment or, in the alternative, summary adjudication, to be heard July 11 and 12, 2024.  The Court advanced the hearings to January 8 and 9, 2024. 

On November 17, 2023, Plaintiff filed notices of non-opposition to the summary judgment motions in exchange for a mutual cost waiver and Dr. Incerpi’s waiver of any claim for malicious prosecution. 

PARTIES’ REQUEST 

Moving Defendants request that the Court grant summary judgment or, in the alternative, summary adjudication. 

LEGAL STANDARD 

A.   Summary judgment 

          “‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

          When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

          “Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

          In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  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. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)   

          In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

B.       Medical negligence 

In order to prevail on a cause of action for medical malpractice, a plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.  (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) 

Expert testimony is required to establish the standard of care by which the acts of a physician are measured. The standard of care is “a basic issue in a malpractice action that can only be proved by [expert’s] testimony, unless the conduct required by the particular circumstance is within the common knowledge of the layman.” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) 

Causation depends on whether the defendant’s conduct was a “substantial factor” in bringing about the plaintiff’s injuries. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1053.)  Causation “must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” (Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402-403.) 

DISCUSSION 

A.   Undisputed facts 

Plaintiff alleges that Dr. Incerpi’s care and treatment fell below the standard of care and caused Plaintiff’s injury.  Dr. Incerpi’s care and treatment of Plaintiff was within the applicable standard of care.  Dr. Incerpi’s care and treatment of Plaintiff was not a cause of injury to Plaintiff. 

B.   Analysis 

Based on the undisputed facts, Moving Defendants have carried their initial burden on summary judgment of showing that Plaintiff cannot establish at least one element of the negligence cause of action.  (See Aguilar, supra, 25 Cal.4th at p. 853.) 

Plaintiff has not filed an opposition to the motion and therefore has not raised a triable issue of fact.  The Court grants the motion. 

CONCLUSION 

          The Court GRANTS the motion for summary judgment filed by Defendants USC Care Medical Group, Inc. dba USC Perinatal Group and Marc Incerpi, M.D. 

          Moving parties are is ordered to give notice of this ruling. 

          Moving parties are ordered to file the proof of service of this ruling with the Court within five days.