Judge: Michael Shultz, Case: 23STCV30213, Date: 2025-04-24 Tentative Ruling
Case Number: 23STCV30213 Hearing Date: April 24, 2025 Dept: 40
23STCV30213
Ellen Salter, et al. v. Dignity Health California Hospital Medical Center, et
al.
Thursday,
April 24, 2025
TENTATIVE ORDER
I.
BACKGROUND
On December
11, 2023, Plaintiffs Ellen Salter, Wiliam McGowan, Terrance McGowan, Kevin
E. McGowan, Bryan McGowan, Laureen Mary Quinn, and
Regina Ann McGowan, individually and as heirs and as successors-in-interest of
Sean Terrance McGowan, Decedent (collectively, “Plaintiffs”) filed a complaint
against Defendants Dignity Health California Hospital Medical Center; John
Ewell Roberts, M.D.; Cynthia Gutierrez, M.D. (“Gutierrez”); Margarita Bass,
M.D.; Cynthia Hsu Kim, M.D.; Sanaz Hashemi, M.D. (“Hashemi”); Marinelle
Camilon, D.O. (“Camilon”); Waquas Aftab, M.D.; Simon Mates, M.D.; and Does 1-20,
inclusive (collectively, “Defendants”). The complaint alleges a single cause of
action for medical malpractice against Defendants. The complaint arises from
alleged medical malpractice perpetuated by Defendants as to Decedent. (Compl.,
¶¶ 15-28.) Plaintiffs allege, inter alia, that Defendants misdiagnosed
Decedent with anaphylactic shock instead of the accurate diagnosis of Ludwig’s
angina. (Compl., ¶ 21.) Plaintiffs allege that, due to Defendants’ actions, “on
December 18, 2022, [D]ecedent . . . tragically and prematurely died at the age
of 56 years . . . .” (Compl., ¶ 23.)
On April
9, 2024, Defendants Camilon, Hahsemi, and Gutierrez filed a joint answer to the
complaint.
On
January 24, 2025, Defendant Gutierrez filed and served the instant Motion for
Summary Judgment (the “Motion”). The Motion is made on the grounds that the
complaint has no merit and fails to present any triable issues of material fact
against Defendant Gutierrez “in that: (1) the care rendered to decedent Sean
Terrance McGowan by defendant Cynthia Gutierrez, M.D. met the applicable
standard of care; and (2) defendant Cynthia Gutierrez, M.D. did not cause
decedent’s death.” (Not. of Mot at p. 2:2-7.)
On
March 11, 2025, Plaintiffs filed a Notice of Non-Opposition to the Motion.
Plaintiffs indicate that they do not oppose the Motion. (3/11/25 Notice of
Non-Opposition.) Plaintiffs further indicate that they “have no objection to
judgment being entered in favor of [D]efendant CYNTHIA GUTIERREZ, M.D., in
exchange for a waiver of any and all costs and potential claims for malicious
prosecution incurred by said defendant.” (3/11/25 Notice of Non-Opposition at
p. 2:10-14.)
As of
April 21, 2025, no opposition brief has been filed. Any opposition was required
to have been filed and served at least 20 days prior to the hearing. (Code Civ.
Proc., § 437c, subd. (b)(2).)
II.
ARGUMENTS
A.
Motion filed on January 24, 2025.
Defendant
Gutierrez contends that summary judgment is appropriate because (1) the care
and treatment rendered to Decedent by Defendant Gutierrez met the applicable
standard of care, and (2) Defendant Gutierrez did not cause Decedent’s death.
III.
LEGAL STANDARDS
The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party cannot show evidentiary support
for a pleading or claim and to enable an order of summary dismissal without the
need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c)
“requires the trial judge 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.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)
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); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520.) 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.) 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. (Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th 826, 849.) In ruling on a motion for summary judgment,
“the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom and must view such evidence and such inferences in
the light most favorable to the opposing party.” (LPP Mortgage, Ltd. v.
Bizar (2005) 126 Cal.App.4th 773, 776.)
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.) In the context of a motion for
summary judgment, a cause of action has no merit if: (1) one or more of the
elements of the cause of action cannot be separately established, even if that
element is separately pleaded; or (2) a defendant establishes an affirmative
defense to that cause of action. (Code
Civ. Proc., § 437c, subd. (o)(1)-(2).)
With respect to a motion for summary judgment “if it is not set forth in
the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo
Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)
IV.
DISCUSSION
A.
First
Cause of Action for Medical Malpractice.
The standard of skill, knowledge and care
prevailing in a medical community is ordinarily a matter within the knowledge
of experts. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.)
“Whether the standard of care in the community has been breached presents the
basic issue in a malpractice action and can only be proved by opinion testimony
unless the medical question is within the common knowledge of laypersons.” (Ibid.)
Where a plaintiff fails to present opinion evidence as to a medical malpractice
cause of action, a plaintiff’s medical malpractice cause of action fails. (Ibid.)
“Expert evidence in a malpractice suit is conclusive as to the proof of the
prevailing standard of skill and learning in the locality and of the propriety
of particular conduct by the practitioner in particular instances because such
standard and skill is not a matter of general knowledge and can only be supplied
by expert testimony.” (Willard v. Hagemeister (1981) 121 Cal.App.3d 406,
412 [citation omitted].) “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.) “Mere possibility alone is insufficient to
establish a prima facie case.” (Ibid.) Proximate cause is generally a
question of fact; however, it becomes a question of law when the facts of the
case permit only one reasonable conclusion. (Capolungo v. Bondi (1986)
179 Cal.App.3d 346, 354.)
In a medical malpractice action, the
plaintiff must establish the following elements: “(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.” (Gami
v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)
Defendant Gutierrez presents the following
undisputed material facts: Defendant Gutierrez’s only involvement with this
Decedent’s care took place on December 3, 2022, when she co-signed an Emergency
Department order to admit Decedent to the ICU and prepared a history and
physical. (Gutierrez’s Separate Statement of Undisputed Material Facts (SSF)
1.) Defendant Gutierrez’s first and only contact with Decedent was to co-sign
the admitting order at 9:27 p.m., prepare the history and physical at 10:27
p.m., and write an order at 11:00 p.m. that his blood sugar should be checked
at the next blood collection by the law. (SSF 11.) There is nothing else in the
chart to suggest Defendant Gutierrez’s further involvement with Decedent’s
care, and if she were involved there would be documentation of her care after
December 3, 2022. (SSF 12.) The medical care and treatment which Defendant
Gutierrez provided to Decedent was, at all times appropriate and was within the
standard of care as it existed in the community as it existed in 2022. (SSF
13.) No alleged standard of care violation by Defendant Gutierrez was a
substantial factor in causing or contributing to Decedent’s death. (SSF 16.) No
act or omission by Defendant Gutierrez either caused or contributed to
Decedent’s death. (SSF 16.)
Defendant Gutierrez has met her burden by
showing that there is no triable issue of fact as to whether she breached the
standard of care. The burden now shifts to Plaintiffs to show a triable issue
of material fact. Given that the Motion
is unopposed, the Court finds that Plaintiffs have failed to present any
admissible evidence to create a triable issue of fact that Defendant Gutierrez breached
the standard of care. Thus, the Court finds that Plaintiffs cannot establish
the element of breach.
As to causation, the Court finds that
Defendant Gutierrez has presented evidence that she did not cause Decedent’s
alleged injuries or death. Plaintiffs have failed to present any admissible
evidence to create a triable issue of material fact as to causation. Thus, the
Court finds that Plaintiffs cannot establish the element of causation.
Additionally, by failing to oppose the
Motion, Plaintiffs have conceded to the arguments raised therein. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)
Plaintiffs also do not oppose the granting of the Motion. (3/11/25 Notice of
Non-Opposition.) Accordingly, the Court finds that summary judgment in favor of
Defendant Gutierrez is appropriate, and the Court GRANTS the Motion.
V.
CONCLUSION
Based on the foregoing, Defendant Cynthia
Gutierrez, M.D.’s Motion for Summary Judgment is GRANTED.