Judge: Mark H. Epstein, Case: 20STCV39460, Date: 2023-02-15 Tentative Ruling

Case Number: 20STCV39460    Hearing Date: February 15, 2023    Dept: R

This is an odd one.  Plaintiff sued a number of defendants asserting, in essence, malpractice.  Defendant, St. John’s Health Care, moved for summary judgment.  In its motion, it asserted that it had not acted below the standard of care, emphasizing that the physicians at issue were not St. John’s employees and thus St. John’s could not be held liable for their actions.  As to St. John’s own actions, expert declarations were submitted in which opinions were given to that effect and that St. John’s actions did not cause any injury.  That is enough to shift the burden.

Plaintiff filed a “Qualified non-opposition.”  Plaintiff stated that it did not oppose the motion so long as it was based on the standard of care for this defendant as the term is used in Code of Civil Procedure section 437c(l), each party would bear its own costs, and that defendant would produce Dr. Corre and Nurse O’Dea for deposition. 

In reply, St. John noted that the motion was unopposed and was meritorious.

The court does not believe a party can submit a “qualified non-opposition” in which certain conditions are imposed.  A party can always suggest as much as part of a settlement, but it cannot be imposed unilaterally.  Accordingly, the court disregards plaintiff’s response and treats the motion as one to which no opposition was submitted.

The court agrees with the defense that summary judgment is appropriate on this record.  As set forth above, defendant shifted the burden and there is no opposition in which a triable issue of fact is identified.  At a minimum, the expert declarations establish a lack of wrongdoing or misconduct or negligence by St. John’s.  Accordingly, the motion is GRANTED.  There are no preconditions.  Unless defendant has already agreed to the contrary (which agreement will not be vitiated by this ruling), defendant may submit a judgment after first submitting it to plaintiff for approval as to form.  The court is not ordering that defendant has waived costs nor is the court ordering defendant to make Dr. Corre or Nurse O’Dea available for deposition, although it is free, of course, to do so.

As to the remainder of the case, the court will discuss an appropriate trial date with counsel.