TENTATIVE RULING

Calendar:    5

Date:          10/13/2023 

Case No: 21 STCV28230 Trial Date: None Set  

Case Name: Morales, et al. v. Panares, M.D., et al.

MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendant City of Hope National Medical Center 

Responding Party: Plaintiffs Francesca Morales, Robert Nathan Morales and Matthew Ethan Kyle 

Morales, through his GAL

RELIEF REQUESTED:

CAUSES OF ACTION: from Complaint   

1) Wrongful Death (Negligence—Premises Liability)  

2) Wrongful Death (Medical Malpractice)  

SUMMARY OF FACTS:

Plaintiff Francesca Morales, the surviving wife of decedent Robert Austria Morales, and plaintiffs Robert Nathan Morales and Matthew Ethan Kyle Morales, the surviving adult and minor sons of decedent, allege that in June of 2020, decedent was admitted to defendant City of Hope with a diagnosis of cellulitis, cellulitis and abscess of leg, and acute myeloid leukemia in relapse.  Plaintiffs allege that on June 8, 2020, while under the care and supervision of employees of defendant City of Hope, decedent sustained a fall that caused left frontal and temporal subdural hematoma and left lateral periorbital hematoma.  

The complaint alleges that decedent was discharged to his family on June 18, 2020, and that at no time during decedent’s stay or at the time of discharge did any employee, including defendants Roy Panares, M.D. and Amandeep Salhotra, M.D., licensed medical professionals employed by City of Hope, inform decedent’s wife, plaintiff Francesca Morales, of decedent’s fall and the serious injuries decedent sustained to his head, or inform her that she should watch decedent closely for any complications arising from the head injuries.  At no time did any of the nurses or doctors at City of Hope inform plaintiff Francesca Morales that if decedent exhibited symptoms relating to having suffered a blow to the head, such as a bloody nose, or complaints of headaches, plaintiff should immediately take decedent to the nearest emergency room. 

On July 22, 2020, decedent was taken to St. Jude Medical Center due to profuse nose bleeds and because he was spitting up blood.  The complaint alleges that decedent passed away on July 31, 2020, and that the cause of death according to the Orange County Coroner’s Office was cardiopulmonary failure and left frontal and temporal subdural hematoma and left lateral periorbital hematoma secondary to a fall.

The file shows that on December 6, 2021, plaintiff filed a Request for Dismissal without prejudice of plaintiffs’ complaint as to defendant Roy Panares, M.D., only, which dismissal was entered as requested the same date.    

On May 31, 2023, plaintiffs filed a Request for Dismissal with prejudice of plaintiffs’ complaint against defendant Amandeep Salhotra, M.D. only, which dismissal was entered as requested on June 1, 2023. 

ANALYSIS:

Under CCP § 437c(p)(2) a 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... 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 the cause of action or a defense thereto.”

Medical Malpractice

  To establish a cause of action for professional malpractice against a medical facility, plaintiff must plead and prove:

1) Defendant’s duty to insure the competency of its medical staff

2) Duty to evaluate the quality of medical treatment rendered on its premises

3) Breach of defendant hospital’s duty in that hospital agent negligently cared for hospital patient

4) The breach as the proximate or legal cause of plaintiff’s injuries; and 

5) Damages. 

Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 347. 

The California Supreme Court has noted in connection with medical malpractice claims that it has:

“consistently held that a [medical professional] is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” 

Landeros v. Flood (1976) 17 Cal.3d 399, 408, citations omitted.  

With respect to a claim for medical negligence: 

“‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ (Sinz v. Owens (1949) 33 Cal.2d 749, 753 [205 P.2d 3, 8 A.L.R.2d 757]; accord, Brown v. Colm (1974) supra, 11 Cal.3d 639, 643; Cobbs v. Grant (1972) 8 Cal.3d 229, 236-237 [104 Cal.Rptr. 505, 502 P.2d 1]; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34, 29 A.L.R.2d 485].)”

Landeros v. Flood (1976) 17 Cal.3d 399.  See also Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 114. 

“…medical causation can only be determined by expert medical testimony. (Gin Non Louie v. Chinese Hospital Assn. (1967) 249 Cal.App.2d 774, 784 [57 Cal.Rptr. 906]; Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635 [21 Cal.Rptr. 646].)”

Salasguevera v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.

Under Evidence Code section 801, the opinion testimony of an expert is limited to opinions:

“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and 

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates...”

Defendant submits three expert declarations addressing the standard of care and medical causation.  

Defendant submits the declaration of Dawn Padley, R.N.       

The declaration adequately establishes Nurse Padley’s qualifications to testify as an expert, as Padley is a nurse licensed to practice in the State of California, with the appropriate education, training and professional experience, and is familiar with the standard of practice for practicing floor nurses and the care provided by the nursing staff to decedent in this matter, including the fall assessments and overall assessments made.  [Padley Decl. ¶¶ 1-3].  Nurse Padley’s CV is submitted with the moving papers.  [Goethals Decl., pp. 277-278].   

 

The declaration also establishes that Nurse Padley has reviewed the appropriate patient medical records, including the records from City of Hope, as well as the deposition of Reina Polanco, R.N. [Padley Decl.  ¶ 5].   Copies of the medical records relied on are attached as Exhibit 6, along with a declaration of the custodian of records from City of Hope. [Ex. 4].  The custodian declaration appropriately establishes a business records exception to any hearsay objection, and the records are appropriately considered by the expert.  See Garibay v. Hemmat (2008, 2nd Dist.) 161 Cal.App.4th 735.

Padley provides substantial testimony setting forth an understanding of the facts, and the reasons for Padley’s opinions.

Specifically, Padley states that to a reasonable degree of medical  probability defendant City of Hope and its staff, employees, and nursing personnel met the applicable standard of care at all times during their care and treatment of Morales, as appropriate Morse fall risk assessments were made, and appropriate fall pre-cautions were in place based on the assessments and re-assessments, including the assessment of Nurse Polanco on the morning of the fall, decedent was checked on more than once prior to the fall, and all orders were carried out appropriately prior to the fall.  [Padley Decl. ¶¶ 10-13].  Padley indicates that a bed alarm was refused, and not required and the nursing staff was within the standard of care in complying with decedent’s request, given no concerns for decedent’s cognitive or decision-making abilities.  [Padley Decl. ¶¶ 10-13].  The declaration also indicates that after the fall, the nursing staff timely provided care and treatment, and informed relevant medical providers, and carried out appropriate orders, and that there was no requirement to notify family members of decedent’s medical needs, given that decedent was alert, oriented and there were no concerns for his cognitive or decision-making abilities.  [Padley Decl. ¶¶ 16, 17].  Decedent was appropriately discharged, with discharge instructions provided, which were followed by the nursing staff, and appropriate follow-ups were scheduled.  [Padley Decl. ¶ 17].  

This showing is sufficient to show that plaintiff will be unable to establish that moving defendant failed to comply with the applicable standard of care. 

Defendant also submits the declaration of Thomas Hemmen, M.D.       

The declaration adequately establishes Dr. Hemmen’s qualifications to testify as an expert, as Dr. Hemmen is a medical doctor licensed to practice in the State of California, board certified in neurology and vascular neurology, with the appropriate education, training and professional experience.  [Hemmen Decl. ¶¶ 2, 3].  Dr. Hemmen’s CV is submitted with the moving papers.  [Goethals Decl., pp. 280-299].   

 

The declaration also establishes that Dr. Hemmen has reviewed the appropriate patient medical records, including the records from City of Hope and the records from St. Jude Medical Center.  [Hemmen Decl.  ¶ 5].   Copies of the medical records relied on are attached as Exhibit 6, along with declarations of the custodian of records from City of Hope and St Jude. [Exs. 4, 5].  The custodian declarations appropriately establish a business records exception to any hearsay objection and are appropriately considered by the expert.  See Garibay v. Hemmat (2008, 2nd Dist.) 161 Cal.App.4th 735.

Dr. Hemmen provides substantial testimony setting forth an understanding of the facts, and the reasons for Dr. Hemmen’s opinions.

Specifically, Dr. Hemmen states that it is his opinion that to a reasonable degree of medical probability the fall decedent sustained and the resulting subdural hematoma were not substantial factors in the decedent’s death, as imaging studies conducted from June 27, 2020 to June 27, 2020 showed the hematoma to be stable, with no expansion or active bleed, so surgery was not required, and there was no evidence it would expand, and decedent was alert and oriented, further demonstrating surgery was not indicated.  [Hemmen Decl.  ¶¶ 10-12]. Dr. Hemmen concludes:

“Based upon the imaging studies from June 26, 2020 and June 27, 2020 along with the signs and symptoms the decedent demonstrated, to a reasonable degree of medical probability, the subdural hematoma was not a substantial factor in the decedent's death on July 31, 2020.”

[Hemmen Decl.  ¶¶ 10-12].

The declaration adequately establishes Dr. Miller’s qualifications to testify as an expert, as Dr. Miller is a medical doctor licensed to practice in the State of California, board certified in internal medicine and medical oncology, with the appropriate education, training and professional experience.  [Miller Decl. ¶¶ 2, 3].  Dr. Hemmen’s CV is submitted with the moving papers.  [Goethals Decl., pp. 300-304].   

 

The declaration also establishes that Dr. Miller has reviewed the appropriate patient medical records, including the records from City of Hope and the records from St. Jude Medical Center, as well as the deposition of Reina Polanco, R.N.  [Miller Decl.  ¶ 5].   Copies of the medical records relied on are attached as Exhibit 6, along with declarations of the custodian of records from City of Hope and St Jude. [Exs. 4, 5].  The custodian declarations appropriately establish a business records exception to any hearsay objection and are appropriately considered by the expert.  See Garibay v. Hemmat (2008, 2nd Dist.) 161 Cal.App.4th 735.

Dr. Miller provides substantial testimony setting forth an understanding of the facts, and the reasons for Dr. Miller’s opinions.

Specifically, Dr. Miller states that it is her opinion that to a reasonable degree of medical probability defendant Dr. Salhotra met the applicable standard of care at all times during his treatment of decedent, as Dr. Salhotra provided no direct care to decedent after the fall, and other hematologists were consulting on the matter, and Dr. Salhotra had no responsibility to provide direct care, or to contact decedent’s family concerning his condition.  [Miller Decl.  ¶¶ 14, 15]. 

Dr. Miller also reviews the treatment Dr. Salhotra provided at the outpatient hematology clinic after discharge and finds that Dr. Salhotra conducted appropriate assessments of decedent, ordered proper tests, and ordered follow-up instructions which were proper, and all within the standard of care.    [Miller Decl. ¶¶ 16, 17, 20].  Dr. Miller is also of the opinion “to a reasonable degree of medical probability,” that “no negligent act or failure to act on the part of Defendant Dr. Salhotra were a substantial factor in causing the decedent’s death.”  [Miller Decl. ¶ 21]. 

It is held that “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.”  Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 985, quotation omitted.    

Here, the declarations of Nurse Padley and Dr. Miller sufficiently establish that the conduct of the moving defendant and its staff fell within the applicable standard of care, and the declarations of Dr. Hemmen and Dr. Miller show that plaintiff will be unable to establish medical causation.   The burden accordingly shifts to plaintiff to raise triable issues of material fact.  

The Second District holds that in a medical malpractice case, if a plaintiff’s expert declaration in opposing summary judgment sets forth specific factual breaches of duty, the defendant medical provider’s motion for summary judgment should be denied.  Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.  “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care…” Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.  

As noted above, it is also held that in such a case, medical causation can only be determined by expert medical testimony.  Salasguevera v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.

Here, in opposition to the motion, plaintiffs fail to submit expert medical testimony concerning the standard of care, or its breach.  

As to medical causation, plaintiffs also fail to submit a declaration of a medical expert.  At best, plaintiffs submit excerpts of the deposition testimony of a witness who appears to be the coroner who prepared the death certificate of decedent. [See Ex. 1, Benyamin-Ajaipi, M.D. Depo.]   While this witness is referred to as “M.D.” there is nothing included explaining his qualifications to offer opinions on medical causation in this matter.  The excerpted testimony, in fact, at one point shows that the witness responded to a question regarding his opinion that the subderal hematoma caused other consequences in the brain by stating, “Well, I mean, for that I think a specialist needs to be asked because I’m limited to my knowledge…”  [Benyamin-Ajaipi Depo., p. 25].   

The testimony also does not include a statement that the opinions offered by the witness at deposition or in the death certificate are within a reasonable medical probability.   

The moving papers cite Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 in which the court of appeal reiterated that with respect to a wrongful death action, former CCP section 377 permits recovery “when the death of a person is caused by the wrongful act or neglect of another...”  Under this statute, the court of appeal noted that proof that decedent’s death was “caused” by defendant’s medical negligence has strict requirements:

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony.” 

Bromme, at 1498, quoting Jones v. Ortho Pharmaceutical Corp. (1985, 2nd Dist.) 163 Cal.App.3d 396, 402-403. 

In any case, there remains no evidence at all from a medical professional submitted by plaintiffs to counter defendant’s showing and raise triable issues on the breach of the standard of care, which is alone sufficient to grant the motion. 

Plaintiffs in opposition argue that defendant has failed to carry its burden of production so that the burden has not shifted to plaintiffs to raise a triable issues of fact.  

Plaintiffs have filed evidentiary objections, arguing that the expert declarations submitted by defendants are based on documents which are not properly relied upon and facts which are derived from inadmissible evidence.    

Plaintiffs argue that an expert cannot base opinions solely on unverified or unsubstantiated medical records. 

However, the medical records submitted and relied upon here are accompanied by sworn declarations of the custodian of records from each medical facility, with personal knowledge sufficient to authenticate the records, and which sufficiently establish the business records exception to the hearsay rule. 

Specifically, Evidence Code section 1271 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and 

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Plaintiffs argue that certain facts in the medical records nevertheless cannot be relied upon to prove the truth of the matters asserted without additional coverage by an exception to the hearsay rule.  As argued in the reply, plaintiffs do not clearly specify which of those matters are at issue here.  

In any case, also as argued in the reply, the expert declaration of Nurse Padley concerning the standard of care is based not only on facts derived from the medical records, but also from Nurse Padley’s review of the deposition transcript of the nurse who treated decedent on the day of the incident, Reina Polanco, R.N., who has personal knowledge of the matters relayed, and who provides the critical facts to support the opinions concerning the standard of care.  [Padley Decl., paras. 5 (b), 8].   

The deposition transcript includes Polanco’s personal observations such as what level of fall risk at which decedent was assessed on the date of the incident, what precautions were taken, such as signage, that the patient refused to allow use of a bed alarm, and that there was no substance or obstacle on the floor at the time of the fall supporting a breach of the standard of care in maintaining the hospital room.   [See Goethals Decl., Ex. 6, Ex. Y, Polanco Depo. pp. 26, 40, 47, 57, 65-66].  

Similarly, Dr. Miller reviewed the Polanco Deposition transcript in forming her opinions concerning Dr. Salhotra’s compliance with the relevant standard of care, and the lack of medical causation.   [Miller Decl., paras. 5(c), 8]. 

This is not a case where the facts relied upon are not sufficiently supported in evidence for the experts to have formed their opinions.  Again, the standard under the Evidence Code remains, that the opinion testimony of an expert is limited to opinions:

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matters as a basis for his opinion.”

Plaintiffs also argue that this is a case where the breach of the standard of care was obvious to a layperson, so that no expert testimony is required.  

As noted above, under Evidence Code section 801, the opinion testimony of an expert is limited to opinions:

“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact…

Plaintiffs argue broadly here that defendant’s expert Nurse Padley:

“opined that it was not necessary to activate the bed alarm because Decedent refused it, and because Decedent was alert and oriented and there was no concern for his cognitive or decision-making abilities. (Padley decl. ¿ 14.) Defendant, however, has not provided any competent and admissible evidence to support this conclusion. For instance, there is no evidence presented that Decedent had a choice of whether Defendant’s staff placed a high-fall-risk sign in Decedent’s room, placed a wristband on Decedent’s wrist, lowered the bed to the lowest possible setting, gave him a call light, and/or placed Decedent’s belongings close to him. Or that a patient has the right to choose what fall precautions will apply to him.

On the contrary, if Nurse Polanco knew that Decedent was a high fall risk, and that patients in the oncology department could suffer severe injuries from falls given their condition, Nurse Polanco should have activated the bed alarm since preventing Decedent’s fall was a high priority. Whether failing to activate the bed alarm was negligent, is a factual issue to be determined by the trier of fact, and this breach would be obvious to laymen.”

[Opposition, p. 9:13-25]. 

The cases in which matters are sufficiently obvious to a layperson and where an expert’s opinions can be disregarded include cases such as Westbrooks v. State of California (1985) 173 Cal.App.3d 1203, where the court of appeal affirmed the trial court’s refusal to admit expert evidence that a reasonable person would have stopped at a traffic checkpoint under the circumstances presented, or Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, in which the Second District found that the trial court had not abused its discretion in sustaining objections to a declaration submitted by an expert in connection with an alleged trivial defect in a sidewalk:

“Here, the trial court did not abuse its discretion in finding that, in this case, no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous. The photographs of the crack submitted by both sides demonstrate that the crack is minor and any irregularity in shape is minimal…. We conclude that the expert testimony and photographs regarding the size and shape of the crack do not create a triable issue whether there was a substantial risk of injury.”

Caloroso, at 928.  

      This situation does not appear to be such a case, or one in which this court can as a matter of law determine that no expert testimony is warranted.  As argued in the reply, this case deals with the medical decision making done by medical professionals in the context of complicated medical care.   Plaintiffs have accordingly failed to show that defendant has not met its initial burden of production to shift the burden to plaintiffs and have also failed to raise triable issues of material fact on the issue of breach of the standard of care.  Defendant has shown that plaintiffs cannot establish this essential element of their second cause of action for medical malpractice.  

Negligence—Premises Liability

A premises liability cause of action will lie where the following elements are established: Defendant owned, leased, occupied or controlled the property; defendant was negligent in the use or maintenance of the property, plaintiff was harmed, and defendant’s negligence was a substantial factor in causing plaintiff’s harm.  CACI 1000.

Civil Code § 1714(a) provides, in pertinent part:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  

Accordingly, it is recognized that every landowner has a duty to maintain property in his possession or control in a reasonably safe condition.  Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, n.5).  

The motion relies on the Polanco deposition again, which provides evidence that the nursing staff checked on decedent at least once per hour prior to the fall, that decedent informed Nurse Polanco that he fell when he tried to get up to use the bathroom, and apologized for not using the call light, and that there was nothing on the floor that caused a fall at the time.  [Ex Y, Polanco Depo, pp. 26, 47, 57, 65-66]. 

This showing is sufficient to show that plaintiffs will be unable to establish the essential elements of this premises liability cause of action that defendant was negligent in the use or maintenance of the premises.  This showing shifts the burden to plaintiffs to raise triable issues of material fact.   

Plaintiffs have failed to address this issue in the opposition at all, so have failed to raise, either by argument or evidence, triable issues of material fact on the issue of some condition of the premises being negligently maintained or managed by defendant to give rise to a breach of duty with respect to the premises.  As argued in the reply, plaintiffs’ failure to address defendant’s arguments in connection with the premises liability claim appears to constitute an abandonment of this claim.   

In fact, the opposition otherwise focuses on the fall risk assessment, the failure to activate the bed alarm, and the failure of defendant’s staff to notify decedent’s wife that he had fallen, none of which appear to implicate a physical condition of the premises, or maintenance of the premises in an unsafe condition.  Instead, these arguments appear to go to the issue of the standard of care to be followed by the facility in the rendition of professional services, the medical malpractice/negligence addressed specifically in the second cause of action. 

Defendant has sufficiently established that plaintiffs cannot establish an essential element of the premises liability cause of action, and plaintiffs have failed to argue or establish by evidence that there are triable issues of fact remaining on this issue.  

Since defendant has established that plaintiff will be unable to establish one or more elements of each cause of action of the complaint, and plaintiffs have failed to raise triable issues of fact in opposition to the motion, summary judgment is appropriately entered in favor of defendant on the entire operative complaint. 

RULING:

Defendant City of Hope National Medical Center’s Motion for Summary Judgment is GRANTED. 

With respect to the second cause of action for medical malpractice, defendant City of Hope National Medical Center has presented expert evidence that the care and treatment of plaintiffs’ decedent by defendant City of Hope and its employees, agents and staff was within the standard of care in this case.  [UMF Nos. 2-5, 8, and evidence cited; Padley Decl. ¶¶ 1-3, 5, 8, 10-13, 16, 17; Goethal Decl., Exs. 4, 5, 6, Ex. Y, Polanco Depo. pp. 26, 40, 47, 57, 65-66; CVS, pp. 277-304; Miller Decl. ¶¶ 2, 3, 5, 8,14, 15, 16 17, 20]. 

Defendant has also submitted expert evidence indicating that, to a reasonable degree of medical probability, no alleged standard of care violations by City of Hope or its staff or agents were a substantial factor in causing or contributing to plaintiff’s alleged injuries.  [UMF No. 6, 9, and evidence cited:  Hemmen Decl. ¶¶ 2, 3, 5, 10-12; Miller Decl., above, and ¶ 21].  

This showing is sufficient to shift the burden to plaintiff to raise triable issues of material fact, based on expert evidence setting forth specific factual breaches of the standard of care.  Hanson v. Grode (1999, 2nd Dist.) 76 Cal.App.4th 601, 607.    

There are no expert declarations submitted in opposition to this motion, and the only deposition testimony  submitted in support of the opposition to meet this showing fails to set forth the specific qualifications of the expert offering opinion evidence, fails to set forth that the moving defendant engaged in any specific breaches of the standard of care, and fails to state that any of the alleged conduct of the moving defendant, to a reasonable degree of medical probability, was a substantial factor in causing or contributing to plaintiffs decedent’s alleged injuries or plaintiffs’ damages.

As to the first cause of action for premises liability, defendant has submitted evidence showing that plaintiffs will be unable to establish the essential element of such a claim that some characteristic of the physical premises was negligently created or maintained in an unsafe condition such as to cause plaintiffs’ decedent’s injuries.  [UMF Nos. 12, 13, and evidence cited; Ex Y, Polanco Depo, pp. 26, 47, 57, 65-66].  Plaintiffs in opposition have conceded that they have not in their complaint or discovery responses identified a specific dangerous condition of the premises which led to the subject incident, injuries and harm.   [Response to UMF No. 13, “Undisputed”].  Plaintiffs’ opposition does not include argument or evidence directed to this cause of action so that the Court finds that any argument concerning the sufficiency of this cause of action by plaintiffs has been abandoned, and that, even if not abandoned, plaintiffs have failed to raise triable issues of material fact, otherwise warranting granting of the motion. 

As triable issues of fact have not been raised as to either alleged causes of action, the motion for summary judgment of the entire complaint in favor of defendant City of Hope National Medical Center is GRANTED. 

Defendant is ordered to file a proposed judgment.   

Plaintiffs’ UNOPPOSED Request for Judicial Notice is GRANTED to the extent permitted by law. 

Plaintiffs’ Objections to the Declaration of Dawn Padley, R.N. in Support of Motion for Summary Judgment.   

Objections Nos. 1-5, 11, 12, 14, 16, 18, and 20, which confusingly include material stricken through, and material which is not stricken through, are OVERRULED as not in proper format.  The objections are also OVERRULED on their merits. 

Objections Nos. 6-10, 13, 15,17, 19, 21, and 22 are OVERRULED. 

Plaintiffs’ Objections to the Declaration of Thomas Hemmen, M.D.  in Support of Motion for Summary Judgment:   

Objections Nos. 1-4, 6, 7, 8, 11, and 3, which confusingly include material stricken through, and material which is not stricken through, are OVERRULED as not in proper format.  The objections are also OVERRULED on their merits. 

Objections Nos. 5, 9, 10, 12, 14, and 15 are OVERRULED. 

Plaintiffs’ Objections to the Declaration of Becky Miller, M.D.  in Support of Motion for Summary Judgment.   

Objections Nos. 1-4, 6-11, 14, 16, 17, and 18, which confusingly include material stricken through, and material which is not stricken through, are OVERRULED as not in proper format.  The objections are also OVERRULED on their merits. 

Objections Nos. 5, 12, 13,15, 19, and 20 are OVERRULED. 

 

  DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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