Judge: Maurice A. Leiter, Case: 23STCV06081, Date: 2024-09-20 Tentative Ruling

Case Number: 23STCV06081    Hearing Date: September 20, 2024    Dept: 54

Hearing Date: September 20, 2024

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motions for Summary Adjudication

Moving Party: Cross-Defendants Kaiser Foundation Hospitals and Southern California Permanente Medical Group

Responding Party: Cross-Complainant Judy Phu

T/R:     CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION IS DENIED.

CROSS-DEFENDANTS TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, reply, and surreply.

BACKGROUND

On August 29, 2023, Plaintiff Uriel Javier Lopez filed the operative first amended complaint against Defendants Judy Phu, Kaiser Foundation Hospitals, and Southern California Permanente Medical Group, asserting causes of action for (1) negligence; and (2) medical malpractice. Plaintiff alleges Defendant Phu lost consciousness while driving and struck Plaintiff causing severe personal injury. Plaintiff alleges the Kaiser Defendants negligently allowed Plaintiff to drive despite treating her for lupus and seizures.

On September 15, 2023, Phu filed the operative first amended cross-complaint against Kaiser Foundation Hospitals and Southern California Permanente Medical Group asserting causes of action for indemnity, apportionment of fault, comparative fault, and declaratory relief. Phu seeks indemnification from Kaiser for liability to Lopez on the ground that they failed to advise her not to drive.

On September 11, 2024, Lopez dismissed Kaiser Foundation Hospitals from the first amended complaint.

ANALYSIS

“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.) Trial judges are required “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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(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 that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Cross-Defendants move for summary judgment, or in the alternative summary adjudication of the cross-complaint on the grounds that Cross-Defendants are not liable to Plaintiff and Cross-Defendants were not negligent in their treatment of Cross-Complainant.

In the moving papers, Cross-Defendants assert that by the time the Court addresses this motion, Cross-Defendants' motion for summary judgment of Plaintiff’s complaint would have been adjudicated in their favor, eliminating any liability to Plaintiff and therefore any liability to Cross-Complainant. But Cross-Defendants took their motion for summary judgment of Plaintiff’s complaint off calendar before hearing on the instant motion.

Cross-Defendants also argue that the cross-complaint fails because Cross-Defendants did not breach a duty of care of Cross-Complainant. The elements of medical malpractice 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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-02 (citations omitted).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.) 

Cross-Defendants present evidence purportedly showing that Cross-Complainant was advised not to drive without clearance from her doctor after she was treated by Cross-Defendants for a seizure in May of 2021, approximately seven months before the December 2021 auto accident. Cross-Defendants also provide the declaration of expert neurologist David Alexander, M.D., who states that Cross-Defendants did not need to advise Cross-Complainant not to drive because her condition did not require it.

In opposition, Cross-Complainant disputes whether she was told not to drive by Cross-Defendants. Cross-Complainant also asserts a neurologist should have examined her to determine whether she should drive but Cross-Defendants did not refer her to a neurologist. In reply, Cross-Defendants argue the motion must be granted because Cross-Complainant has not presented a contradictory expert opinion.

In surreply, Cross-Complainant presents the declaration of expert Gelsey L. Goodstein, M.D., who states that Cross-Defendants should have explicitly advised Cross-Complainant not to drive. This declaration was acquired by Plaintiff and used in Plaintiff’s opposition to Cross-Defendant's motion for summary judgment of Plaintiff’s pleading. Cross-Complainant asserts that she did not have access to this prior to the date the opposition was due because Cross-Defendants advanced the hearing on the instant motion to be heard with the motion against Plaintiff’s complaint. Cross-Complainant argues that the Court must consider the surreply because Cross-Defendants motion for summary judgment of the cross-complaint represents that the motion for summary judgment on the complaint would be heard and granted before hearing on the motion for summary judgment of the cross-complaint.

The Court finds a triable issue of fact as to whether Cross-Defendants breached the standard of care. Cross-Defendants’ own evidence contradicts itself, showing both that Cross-Defendants believed Cross-Complainant was not fit to drive and that Cross-Defendants believed Cross-Complainant was fit to drive. And the motion itself argues that it is dependent on a ruling on Cross-Defendants motion for summary judgment of Plaintiff’s complaint; Plaintiff presented an opposing expert opinion in opposition to that motion.

Cross-Defendants' motion is DENIED.