Judge: Michael E. Whitaker, Case: 21STCV08652, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV08652    Hearing Date: December 6, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion for Motion for Summary Judgment
2. Memorandum of Points and Authorities In Support of Motion for Summary Judgment
3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
4. Request for Judicial Notice in Support of Motion for Summary Judgment
5. Declaration of Edward W. Lukas in Support of Motion for Summary Judgment
6. Declaration of Joseph K.W. Hsu, M.D. in Support of Motion for Summary Judgment
7. Compendium of Evidence in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment
2. Separate Statement of Undisputed and Disputed Material Facts in Opposition to Motion for Summary Judgment
3. Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment
4. Declaration of Arnold W. Gross Support of Opposition to Motion for Summary Judgment
5. Declaration of Guadalupe Reales in Support of Opposition to Motion for Summary Judgment
6. Declaration of Graciela Reales in Support of Opposition to Motion for Summary Judgment
7. Compendium of Exhibits in Support of Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply Brief in Support of Motion for Summary Judgment
2. Response to Plaintiffs’ Additional Facts
3. Declaration of Edward W. Lukas [1]
4. Objection to Request for Judicial Notice
5. Evidentiary Objections; Proposed Order

BACKGROUND

In the complaint filed on March 4, 2021, Plaintiff Graciela Reales (“Plaintiff”) alleges a single cause of action for premises liability against Defendant Joseph K.W. Hsu, MD, Professional Corporation (“Defendant”).  In particular, Plaintiff asserts that on June 25, 2019 she “was a patient at Defendant Joseph K. W. Hsu, MD, Professional Corporation and DOES l-50's office and was seriously injured when she fell out of a loose and poorly maintained chair during an eye exam. The chair was under Defendant Joseph K. W. Hsu, MD, Professional Corporation and DOES 1-50’s maintenance and control.”  As a result of the fall out of the chair, Plaintiff claims she has suffered injuries and damages.  (See Complaint, p. 5 (sic).) 

Defendant moves for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion. 

LEGAL STANDARDS – MOTION FOR SUMMARY JUDGMENT

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[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.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

EVIDENTIARY OBJECTIONS

            With respect to Defendant’s evidentiary objections, the Court rules as follows:

1.         Sustained

2.         Sustained

DISCUSSION

1. LEGAL STANDARDS - GENERALLY

    

   The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

    

   “Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.  When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.”  (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].)  To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty.  (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) 

    

2. BURDEN SHIFTING

    

   “A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].) 

    

   Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.”  (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.)   Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence.  The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].)  And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.”  (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) 

    

3. STATUTE OF LIMITATIONS

    

   Defendant argues that Plaintiff’s complaint is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5 which provides in pertinent part: 

    

   In 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

    

   For the purposes of this section:

    

   (1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;  [¶] . . . [¶].

    

   (Code Civ. Proc., § 340.5.)  Further, under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.”  (Code Civ. Proc., § 364, subd. (a).)  “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.”  (Code Civ. Proc., § 364, subd. (d).)

    

   Defendant advances in part the declaration of Joseph K.W. Hsu, M.D. (“Hsu”) who is a licensed physician in the State of California and the owner of Defendant.  Hsu states in relevant part:

    

• “On June 25, 2019, as part of my medical practice and treatment of Ms. Reales, I performed an eye examination of Ms. Reales that included a retinal scan.  For the retinal scan, Ms. Reales was sitting on a hydraulic examination chair that I have used for over 20 years to perform my examinations and keep well maintained.  I use this examination chair because it has a foot pump that I can use to raise and lower patients to the appropriate level for their eye exam.  During my examination of Ms. Reales, as is my custom and practice, I instructed Ms. Reales to not lean back in the examination chair.  During the course of my examination, as I was recording my observations, Ms. Reales leaned back in the examination chair and the examination chair fell back and Ms. Reales fell to the floor.”

   

• “At no time since Ms. Reales’ fall from the examination chair on June 25, 2019 have I or my medical practice, Joseph K.W. Hsu, M.D., Professional Corporation, ever received a notice of intent to sue for alleged malpractice for the June 25, 2019 incident that is the subject of this lawsuit.”

   

  (Declaration of Joseph K.W. Hsu, M.D., ¶¶ 2-3.) 

   

              Defendant contends that Plaintiff’s cause of action accrued on June 25, 2019 when the subject incident occurred.  As such, Defendant argues, in part, that Plaintiff’s cause of action is subject to the 1-year limitation period under Section 340.5, and because Plaintiff filed her complaint on March 4, 2021, the cause of action is barred as a matter of law. 

   

              However, Section 340.5 applies only to actions against health care providers.  Hence the question:  Is Defendant a health care provider as defined under Section 340.5?   Stated differently, has Defendant advanced any evidence that it is a health care provider as defined under Section 340.5?

   

              Defendant has advanced evidence that Hsu is a licensed physician and he fits the definition of health care provider under Section 340.5 (See Code Civ. Proc., § 340.5 [“Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code”].)  But Hsu is not a party to the action.  Therefore, his status as a health care provider is superfluous to the issue of whether Defendant is a health care provider under Section 340.5. 

   

              Here, Defendant has not advanced evidence that it is health care provider as defined under Section 340.5.  In other words, Defendant has not proffered sufficient, competent evidence that it is a “clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.”   Moreover, Defendant has not advanced any authority which holds that it is a “health care provider” as termed under Section 340.5.   The appellate opinions cited by Defendant are factually and thus legally distinguishable.   (See, e.g., Prince v. Sutter Health Central (2008) 161 Cal.App.4th 971, 974 [“an unlicensed social worker, registered with the appropriate agency and working toward licensure, is a “health care provider” rendering “professional services” under the Medical Injury Compensation Reform Act of 1975 (MICRA)”]; Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549, 567 [“Because [defendant] was practicing lawfully under an express exemption from the licensing and certification requirements of Division 2, we conclude that she was within the definition of “health care provider” of section 340.5, subdivision (1)”].)

   

  In short, because Defendant fails to advance sufficient, competent evidence to establish it is a health care provider under Section 340.5, the Court finds that Defendant has not met its initial burdens of production and persuasion.  Consequently, the Court determines that the burden of production does not shift to either Plaintiff to produce evidence that raises triable issues of material fact. 

   

  CONCLUSION AND ORDER

   

  Having found that Defendant has not met its initial burdens of production and persuasion, the Court denies Defendant’s motion for summary judgment and finds that Defendant is not entitled to judgment as a matter of law. 

   

  The Clerk of the Court shall provide notice of the Court’s ruling.