Judge: Nathan Vu, Case: 2022-01256259, Date: 2022-11-28 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion for Summary Judgment and/or Adjudication

Defendants Mission Hospital Regional Medical Center’s and St. Joseph Health System’s motion for summary judgment is GRANTED.

Defendants Mission Hospital Regional Medical Center’s and St. Joseph Health System’s motion for summary adjudication is GRANTED as to the first cause of action and the second cause of action.

Defendants Mission Hospital Regional Medical Center’s and St. Joseph Health System’s motion for summary adjudication as to the request for punitive damages is MOOT.

Defendants Mission Hospital Regional Medical Center and St. Joseph Health System move for summary judgment, or in the alternative, for summary adjudication as to the first cause of action, second cause of action, and request for punitive damages in the Complaint filed by Plaintiff Edward Ryan.

Standard for Summary Judgment and Summary Adjudication

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“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, . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).)

A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] 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.” (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

Summary judgment is no longer disfavored. The Supreme Court confirmed that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “‘to liberalize the granting of [summary judgment] motions.’” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)

Nonetheless, in ruling on a motion for summary judgment or summary adjudication, “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.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.)

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

1st Cause of Action (Elder Abuse)

The first cause of action alleges that Defendants neglected Plaintiff, who was an elderly patient at two of Defendant’s hospitals. Specifically, on 06/26/2021 and later on 06/29/2021, the emergency departments at the hospitals failed to properly assess or dress a blood blister on Plaintiff’s left second toe, which ultimately became infected and required amputation. (Compl., ¶¶ 21, 23.) The Complaint also alleges that between 07/17/2021 and 07/21/2021, the hospitals withheld necessary medical and nursing care to address and treat the toe, resulting in angioplasty on Plaintiff’s left leg and amputation of his toe. (Compl. ¶ 25.)

Pursuant to the Welfare and Institutions Code, neglect includes, among other things, the failure to provide medical care for physical and mental health needs. (Welfare & Inst. Code, § 15610.57, subd. (b)(2).) In this context, neglect “requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.” (Winn v. Pioneer Med. Group, Inc. (2016) 63 Cal.4th 148, 160.)

In order to allege “neglect,” the plaintiff must begin by alleging that the defendant had “care or custody” of the victim. (Id., at p. 155.) The California Supreme Court explained in Winn that whether a defendant has care or custody requires “a robust caretaking or custodial relationship—that is a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Ibid.)

In addition, “[t]o recover the enhanced remedies under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.” (Carter v. Prime Healthcare Paradise Valley (2011) 198 Cal.App.4th 396, 405, citations omitted.) The Elder Abuse Act was not meant to encompass every course of behavior that fits the definition of neglect. Rather, it is premised on the idea that certain situations place elders and dependent adults at heightened risk of harm, and heightened remedies relative to conventional tort remedies are appropriate as a consequence. (See Delaney v. Baker (1999) 20 Cal.4th 23, 36-37.) Blurring the distinction between neglect under the Act and conduct actionable under ordinary tort remedies risks undermining the Act's central premise. (Id. at p. 31.)

For example, in Carter v. Prime Healthcare Paradise Valley, the court concluded that allegations of “failure to treat [plaintiff’s] pressure ulcers, administer prescribed antibiotics or stock the crash cart, false documentation; purposeful[ ]inadequate testing for medications” were insufficient to rise to the level of neglect required to state a cause of action under the Elder Abuse Act because they allegations did not include the hospital’s denial or withholding of any care to cause those injuries. (Carter v. Prime Healthcare Paradise Valley, supra, 198 Cal.App4th at p. 409.)

Here Defendants show that Plaintiff cannot establish that Defendants had any caretaking or custodial relationship with Plaintiff during any of Plaintiff’s alleged visits to Defendants’ hospitals or that Defendants’ conduct constituted more than simple or gross negligence. Specifically, Defendants show Plaintiff cannot establish that he was a patient of the Defendants on 06/26/2021, (Def.’s Sep. St., Nos. 1-2); that Defendants had no caretaking or custodial relationship during Plaintiff’s 06/29/2021 visit, (Def.’s Sep. St., Nos. 3 & 9 [showing Plaintiff was discharged the same day he presented to the Emergency Department]); and that Defendants did not fail to provide medical care to Plaintiff during the 07/17/2021-07/24/2021 admission, (Def.’s Sep. St., No. 36).

Plaintiff has not opposed the motion and therefore failed to meet his shifted burden to present substantial evidence to show a material dispute of fact as to these essential issues. The court must grant summary adjudication as to the first cause of action.

2nd Cause of Action (Negligence)

The second cause of action alleges Defendants were negligent in providing or failing to provide medical care and treatment to the Plaintiff. The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Defendants meet their initial burden to show the medical care and treatment Plaintiff received at each visit and/or admission was within the standard of care in the community as it existed in 2021. (Def.’s Sep. St.. Nos. 1, 2, 21, & 36.)

Plaintiff’s failure to oppose the motion means that Plaintiff has not met his shifted burden. Thus, Plaintiff cannot establish that there is a material dispute of fact as to an essential element of the second cause of action for negligence and the court must grant summary adjudication as to the second cause of action.

Punitive Damages

In light of the court’s ruling granting summary judgment as to the entire action and summary adjudication as to every cause of action asserted against the Defendants, the request to grant summary adjudication as to the request for punitive damages is moot. The court need not address this issue.

Plaintiff’s Failure to Oppose

Courts should have a preference to decide matters on the merits. The court is thus concerned about Plaintiff’s failure to file opposition papers in response to such a consequential motion.

However, there is no doubt that Plaintiff and Plaintiff’s counsel were aware of this motion and the date on which the motion would be heard. First, Defendants served Plaintiff’s counsel with the motion. (fn.1)

Second, on 08/31/2022, Plaintiff and Plaintiff’s counsel filed an ex parte application that acknowledged the filing of Defendants’ motion for summary judgment, or in the alternative, summary adjudication and asked that the hearing date on the motion be continued. On 09/01/2022, Plaintiff’s counsel appeared at the hearing on the ex parte application, at which time the court granted the continuance and set the motion for summary judgment, or in the alternative, summary adjudication to be heard on this date, 11/28/2022.

To date, Plaintiff has not filed any opposition papers or a request for leave to file untimely opposition papers or another request to continue the hearing on the motion. Under these circumstances, the court must assume that Plaintiff has made the voluntary decision not to oppose the motion for summary judgment, or in the alternative, summary adjudication.

Defendants shall give notice of this ruling.

(fn.1) The court notes that the proof of service attached to the motion for summary judgment, or in the alternative, summary adjudication is not code compliant as it does not contain the electronic service address of the person making the electronic service. (See Code Civ. Proc. § 1013b, subd. (b) [party serving by electronic service must include in proof of service “[t]he electronic service address . . . of the person making the electronic service”].) This does not appear to have caused any actual prejudice as Plaintiff’s counsel has been able to contact Defendant’s counsel in the past, and Plaintiff and Plaintiff’s counsel had actual notice of the motion and the hearing date. However, Defendants’ counsel should change the form of the proofs of service in the future to ensure that they are code compliant.