Judge: Mark A. Young, Case: 23SMCV02084, Date: 2024-09-17 Tentative Ruling

Case Number: 23SMCV02084    Hearing Date: September 17, 2024    Dept: M

CASE NAME:           Smith, et al., v. Lee, et al.

CASE NO.:                23SMCV02084

MOTION:                  Motion for Summary Judgment

HEARING DATE:   9/17/2024

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  

“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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, 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 or plaintiffs.”¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿ 

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when¿a material fact is the witness’s¿state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)¿ 

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.”¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿ 

¿ 

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)¿ 

Analysis

Defendant Cedars-Sinai Medical Center moves for summary judgment in its

favor against Plaintiff Scout Smith (hereinafter, “Scout”). In the operative complaint, Plaintiff Scout asserts only a single cause of action for professional negligence. The elements of a professional negligence in the medical malpractice context are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.”  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.”  (Id. at 403) 

Defendant argues that Scout’s cause of action is actually a claim for loss of consortium. Recovery for loss of consortium has been limited only to persons whose spouses have been injured by the negligence of a third party. (Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 31.) The elements for a loss of consortium cause of action thus require a valid and lawful marriage between the plaintiff and the person injured at the time of the injury. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

The allegations of the complaint frame the issues. The Complaint alleges that on May 19, 2022, Plaintiff Sarah Smith (“Plaintiff” or “Sarah”) consulted with Defendants for evaluation, care and treatment relating to a cesarean section procedure, and thereafter, Plaintiff continued under their care. (Compl., ¶ 6.) Defendants allegedly failed to properly and timely diagnose, monitor, evaluate and treat Plaintiff causing Plaintiff to suffer monetary damages and injuries such as pain, and impaired quality of life. (¶ 7.) As a further result, Plaintiffs, including Sarah, Scout and Chris Smith, suffered disability and limitations to care, comfort, services, support and financial contributions. (¶ 9.) Plaintiffs Sarah and Scout Smith bring the first cause of action for “professional negligence.” (¶ Compl., ¶¶ 10-11.) They allege that the care and treatment provided by Defendants and each of them was performed in such a negligent and careless manner that it caused Plaintiffs to suffer injuries and damages. (¶ 10.) As a direct and proximate result of the negligence of Defendants, Plaintiffs Scout and Sarah have been damaged. (¶ 11.) Only Chris Smith individually claims a loss of consortium. (¶¶ 13-14.) Thus, Scout generally states a cause of action for professional negligence.

Defendants argue that Scout is not a proper plaintiff because his claimed damages only stem from a loss of consortium from his mother. Defendant cites the dissent of Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 427-428, which observed that California Supreme Court precedent limits or precludes negligence liability involving claims by “secondary victims” that seek recovery “for collateral effects of the wrongful conduct. For example, when a defendant has negligently caused physical injury to another, [the California Supreme] court has carefully limited the defendant’s liability to third parties for emotional distress occasioned by the injury to the primary victim.” (Bily 3 Cal.4th at 427-428.) “[The California Supreme Court has] also denied recovery for loss of consortium to a child, parent, or unmarried cohabitant of a person physically injured by a defendant’s negligence.” (Id. at 428, citing Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441.)

In Borer, the Supreme Court held that children could not sue for the loss of consortium (i.e., “services, society, companionship, affection, tutelage, direction, guidance, instruction and aid in personality development, all with its accompanying psychological, educational and emotional detriment”) caused by personal injuries to their mother. (Borer, supra, 19 Cal.3d at 444, emphasis added.) There, a mother’s nine children sued an airline for loss of parental consortium resulting from their mother being struck by a falling light fixture in an airline terminal. (Id.) The Borer court observed strong policy reasons to limit tort liability, including the societal implications and the intangible character of loss of parental consortium. (Id. at 446-448.) For example, the liability implications were extensive: “virtually every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her children, the expense of settling or litigating such claims would be sizable.” (Id. at 447.) The court questioned the speculative nature of the damages, and the risk of double recovery: “by what standard could we determine that an award of $10,000 was inadequate, or one of $500,000 excessive? Difficulty in defining and quantifying damages leads in turn to risk of double recovery: to ask the jury, even under carefully drafted instructions, to distinguish the loss to the mother from her inability to care for her children from the loss to the children from the mother's inability to care for them may be asking too much.” (Id. at 448.) The Borer court also noted that allowing for a loss of consortium for children would not be essential to prevent the tort-feasor from escaping liability, since the immediate victim of the tort retains a cause of action for the injuries inflicted. (Id. at 452.) Moreover, the degree of harm to the children did not overcome these policy considerations. The court recognized that children need “love, affection, society and guidance of their parents; any injury which diminishes the ability of a parent to meet these needs is plainly a family tragedy, harming all members of that community… however, that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, [California law does] not recognize a nonstatutory cause of action for the loss of parental consortium.” (Id., at 453.)

In Burgess, a mother was permitted to sue an obstetrician for negligent infliction of emotional distress when, during the course of the labor and delivery, the obstetrician ruptured the mother’s membrane, depriving the baby of oxygen and causing brain damage. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1070.) Due to the special relationship between a mother and child, the obstetrician was liable on a direct form of negligence for the emotional distress caused to the mother. (Id. 1076.) “Due to the relationship between mother and child, a physician owes a duty to a pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.” (Ibid.) While the mother could not recover for the secondary/indirect damages from her loss of consortium (services, affection, society, companionship, etc.) of her child, the mother’s emotional distress claim was valid because it was not derivative of any duty or injuries to the child, but a direct duty owed to the mother. Thus, the mother was not suing for loss of consortium, but for her own injuries and damage caused by a breach of duty owed to her.

Here, Defendant demonstrates that Scout only seeks to recover secondary damages stemming from the loss of consortium of his mother during critical stages of early development. Specifically, Defendant presents Plaintiffs’ discovery responses which show Scout’s claimed damages stem from loss of his mother’s affection, society, companionship, and love, and for disruption of Scout’s “normal” routine of life because of the care required for mother’s injuries. (UMF 14.) Defendant served form interrogatories to plaintiff Scout, and in response to FROG no. 6.2, asking for identification of “each injury attributed to the INCIDENT and the area of your body affected,” Scout asserted his identified injuries of “inability to consume mother’s milk, bond with mother and mental anguish.” (Pruet Decl., Ex. 4, 4:9-18.) Scout only identified his mother Sarah Smith. (Id., FROG no. 12.) Scout also stated: “The only statements of which Plaintiff is aware are those contained in Plaintiff Sarah M. Smith’s medical records related to her injuries.” (Id., FROG no. 12.3.) Scout only referenced photos and videos of Sarah’s injuries as to FROG no. 12.4. This evidence shows that, despite the allegations of direct damages to Scout, Scout only seeks secondary damages resulting from personal injuries to Sarah.

Plaintiffs’ evidence in opposition does not contest the conclusion that Scout only seeks secondary damages resulting from personal injuries to Sarah Smith. Even liberally construed in Plaintiff’s favor, the evidence reinforces that Scout only claims a loss of consortium, rather than for damages suffered directly by Defendants’ alleged malpractice during the course of treatment. Scout claims that he sustained bodily and personal injuries, as well as mental and emotional injuries as a result of Defendants’ negligence. (Gorton Decl., ¶¶ 5-8.) Scout cites physical damages coming from his inability to breast feed, that Sarah’s breast milk production was affected, that he was unable to bond with his mother, that the sudden switch in food brought on by this inability caused stress, stomach cramping, diarrhea, sleepless nights, and bottle confusion. (See Resp. to UMF 14; AMF 15-21.) Plaintiffs insist that because they have phrased Scout’s loss of consortium (affection, love, care, services, etc.) as resulting in physical harm to Scout, that this case is distinguishable from the actions where recovery was denied. However, the claimed physical injuries result from Sarah Smith’s inability to breast feed. Sarah Smith’s inability to breastfeed was caused by Defendant’s alleged malpractice during the caesarian section. Plaintiffs do not allege or present evidence that Defendant otherwise harmed Scout during the course of treatment. Plaintiffs therefore only cite one form of damage: the secondary effects of Sarah Smith’s alleged malpractice damages.

Plaintiffs assert that these are cognizable and real injuries suffered by Scout. The Court has no doubt that Scout suffered harm as a result of being unable to breastfeed. The proffered expert declaration makes this clear. (Gorton Decl.) Indeed, the above cases recognizes that injuries to parents cause real, appreciable harm to their children. The Borer court recognized this fact, but concluded that liability should still be curtailed. The Borer court held that, even if there is a foreseeable injury to a legally recognized relationship, there is not necessarily a cause of action. “[I]nstead [caselaw] clearly warns that social policy must at some point intervene to delimit liability.” (Id. at 446.) California law has delimited liability for Scout’s claim for loss of consortium here, no matter the physical nature or severity of the injuries. Instead, only Sarah Smith may recover for her direct injuries caused by Defendants’ malpractice, and only Chris Smith may recover for loss of consortium for Sarah’s injuries.

Accordingly, the motion is GRANTED.