Judge: Robert B. Broadbelt, Case: 22STCV21699, Date: 2024-11-06 Tentative Ruling

Case Number: 22STCV21699    Hearing Date: November 6, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Houman Vosoghi, M.D.

RESPONDING PARTY:       Plaintiff Shahnaz Bahadori

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “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.)  “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “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).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendant Houman Vosoghi, M.D. (“Defendant”) moves the court for an order granting summary judgment in his favor and against plaintiff Shahnaz Bahadori (”Plaintiff”) on her Second Amended Complaint or, in the alternative, granting summary adjudication in favor of Defendant and against Plaintiff on Plaintiff’s first and fifth causes of action.[1]

1.     First Cause of Action for Negligence

“‘The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.’”  (San Antonio Regional Hospital v. Superior Court of San Bernardino County (2024) 102 Cal.App.5th 346, 350 [internal citation omitted].)

The court finds that Defendant has not met his burden of showing that the first cause of action for negligence has no merit because Defendant has not shown that the elements of breach of duty and causation cannot be established as to both theories on which this cause of action is based.  (Alameda Health System v. Alameda County Employees’ Retirement Assn. (2024) 100 Cal.App.5th 1159, 1174 [the pleadings delimit the scope of the issues, and the burden of a defendant moving for summary judgment or adjudication is to negate the plaintiff’s theories of liability as alleged in the complaint]; Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . .”].)

Plaintiff has based this cause of action on the following alleged wrongful acts or omissions: (1) Defendant’s failure to provide proper follow-up treatment and ignoring of Plaintiff’s complaints (SAC ¶ 48), including by (i) telling Plaintiff that there was nothing that Defendant could do for her when he knew or should have known that the iStents were in the wrong place (SAC ¶ 27), (ii) failing to remove the improperly-placed iStents (SAC ¶ 28[2]), and (iii) advising Plaintiff that if she removed the iStents, it could cause Plaintiff’s eye to bleed out and/or cause blindness (SAC ¶ 36), and (2) Defendant’s conduct in “not obtaining [Plaintiff’s] informed consent to undergo the operation/eye surgery with Dr. Balakrishnan nor obtaining her consent based upon full authorization” (SAC ¶ 49).  However, Defendant did not present evidence or argument establishing that (1) he did not breach his duty to obtain Plaintiff’s informed consent to undergo the subject surgery, or (2) his failure to do so did not cause Plaintiff’s damages.  (Flores v. Liu (2021) 60 Cal.App.5th 278, 292 [“A physician who fails [to obtain his patient’s informed consent regarding which course of treatment to pursue] is liable for negligence”].)

The court acknowledges that Defendant has submitted the expert testimony of Dr. Matkovich, a physician licensed in the State of California and board-certified in ophthalmology, in which Dr. Matkovich has (1) explained, pursuant to her review of Plaintiff’s medical records, the steps taken by Defendant (and nonmoving defendant Dr. Balakrishnan) on September 1, 2, 7, and 9, 2021, and October 7, 2021, and (2) stated her opinion that Defendant “made appropriate examinations and recommendations upon his findings noted in the chart[,]” including by working with Plaintiff on a medication regimen that would reduce her eye pressure, examining Plaintiff the day after her surgery, and making recommendations with specific parameters when adding additional medications dependent upon eye pressure to ensure that the next examiner would appropriately address the eye pressure.  (Dr. Matkovich Decl., ¶¶ 1, 4-11.)  However, Dr. Matkovich’s testimony does not show that Defendant obtained Plaintiff’s informed consent before she underwent surgery. 

Moreover, Defendant (1) did not, in his declaration, assert that he obtained Plaintiff’s informed consent for the surgery, and (2) did not, in his moving papers, either (i) address the allegations that he failed to obtain Plaintiff’s informed consent (SAC ¶ 48), including the allegations that he failed to provide information about the operation (SAC ¶ 48) and “urged” Plaintiff to undergo the surgery in a negligent manner “because he told Plaintiff something that was not true or exaggerated” (SAC ¶ 20), or (ii) otherwise present authority and argument showing that Plaintiff cannot establish an element of her negligence claim that is based on lack of informed consent.  Further, while Dr. Matkovich has, generally, stated that no negligent act or omission on the part of Defendant caused Plaintiff’s injuries, the court finds that her opinion as to causation relates only to Defendant’s conduct in providing Plaintiff follow-up treatment since Dr. Matkovich did not discuss Defendant’s obtaining Plaintiff’s informed consent in her declaration.  (Dr. Matkovich Decl., ¶¶ 12, 5-10.)

Thus, the court finds that Defendant has not met his burden to show that Plaintiff’s cause of action for negligence fails, in its entirety, since Defendant did not address both theories on which Plaintiff bases this claim.

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for negligence.

2.     Fifth Cause of Action for Elder Abuse

“The purpose of the Elder Abuse and Dependent Adult Civil Protection Act . . . is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.”  (Keading v. Keading (2021) 60 Cal.App.5th 1115, 1125 [internal quotation marks and citations omitted].)  Under the Elder Abuse and Dependent Adult Civil Protection Act (Wel. & Inst. Code, § 15600 et seq.) (the “Elder Abuse Act”), “‘[a]buse of an elder or a dependent adult’ means[,]” inter alia, “[p]hysical abuse . . . or other treatment with resulting physical harm or pain or mental suffering.”  (Wel. & Inst. Code, § 15610.07, subd. (a)(1).) 

The court finds that Defendant has not met his burden of showing that the fifth cause of action for elder abuse has no merit because Defendant has not shown that elements of the cause of action for physical elder abuse cannot be established for the reasons set forth below.

First, Defendant has argued that his conduct was not reckless, oppressive, malicious, or fraudulent.  However, Defendant has not presented adequate argument or authority establishing that the existence of reckless, oppressive, malicious, or fraudulent conduct is an element of a cause of action for physical elder abuse.  (SAC ¶ 88 [alleging that Defendant engaged in physical elder abuse].)

The court acknowledges that, “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse,” the following circumstances apply: (1) the court shall award to a plaintiff reasonable attorney’s fees and costs, (2) the limitations on recoverable damages in Code of Civil Procedure section 377.34 shall not apply (but shall not exceed damages permitted under Civil Code section 3333.2), and (3) the standards set forth in Civil Code section 3294 shall be satisfied before any damages or attorney’s fees may be imposed against an employer.  (Wel. & Inst. Code, § 15657.)  However, that standard set forth in section 15657 of the Elder Abuse Act governs a plaintiff’s recovery of the heightened remedies described above.  (Ibid.; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 337 [“To obtain the heightened remedies of section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct’”] [emphasis added]; CACI Nos. 3106, 3107.)  Section 15657 does not set forth an element of a cause of action for physical elder abuse, but rather sets forth elements that must be shown to establish a plaintiff’s entitlement to certain remedies (e.g., attorney’s fees and costs).

The court finds that Defendant did not present argument and authority establishing that Plaintiff must prove recklessness, oppression, fraud, or malice to recover damages for physical elder abuse under the Elder Abuse Act, such that Defendant’s argument that his conduct was not reckless, oppressive, malicious, or fraudulent does not show that the fifth cause of action for physical elder abuse, in its entirety, has no merit.

Second, Defendant has argued that “it is clear that [Defendant] did not ‘neglect’ [P]laintiff, as understood under Welfare and Institutions Code section 15657.”  (Mot., p. 17:20-21 [emphasis in original].)  However, Plaintiff did not allege a cause of action for neglect under the Elder Abuse Act.  Instead, Plaintiff (1) expressly alleged that Defendant “engaged in physical elder abuse[,]” and (2) did not cite, as the statutory basis for this cause of action, the provision of the Elder Abuse Act defining neglect.[3]  (SAC ¶¶ 88 [emphasis added], 90 [citing Welfare and Institution Code §§ 15610.07 [defining abuse of an elder or dependent adult generally], 15610.53 [defining mental suffering], 15610.63 [defining physical abuse]].)  Thus, Plaintiff has not alleged a cause of action for neglect under the Elder Abuse Act, such that Defendant’s contention that he did not neglect Plaintiff does not show that the fifth cause of action for elder abuse has no merit.  (Alameda Health System, supra, 100 Cal.App.5th at p. 1174 [burden of a defendant moving for summary judgment or adjudication is to negate the plaintiff’s theories of liability as alleged in the complaint].)

Third, Defendant contends that he was not Plaintiff’s care custodian.  However, Defendant did not cite authority or argument establishing that an element of a cause of action for physical elder abuse is that Defendant was a care custodian for Plaintiff. 

Physical abuse of an elder, as defined by the Elder Abuse Act, does not require the person who committed physical abuse to have been a care custodian of the elder.  (Wel. & Inst. Code, § 15610.63 [defining physical abuse].)  Instead, it is an element of abuse of an elder or dependent adult based on neglect.  (Wel. & Inst. Code, § 15610.57, subd. (a)(1) [defining neglect to mean “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise”] [emphasis added]; Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 102 [“‘neglect [under the [Elder Abuse] Act] 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’”]; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 [noting that neglect includes the “negligent failure of an elder custodian” to provide medical care, which is distinct from professional negligence].)  Defendant did not cite authority establishing that, in order to be held liable for the physical abuse of an elder, a defendant must be the care custodian of the elder plaintiff.  Moreover, while the court notes that abuse of an elder is also defined to include “[t]he deprivation by a care custodian of goods or services that are necessary to avoid harm or mental suffering[,]” Plaintiff’s cause of action is based on the alleged physical abuse of an elder as set forth above, and does not allege the deprivation of goods or services of a care custodian.  (Wel. & Inst. Code, § 15610.07, subd. (a)(2); SAC ¶ 88 [alleging the “physical elder abuse” of Plaintiff].)   

Thus, for the reasons set forth above, the court finds that Defendant has not met his burden to show that the cause of action for elder abuse, based on the facts and theories alleged in the Second Amended Complaint, has no merit.

The court therefore denies Defendant’s motion for summary adjudication as to the fifth cause of action for elder abuse.

ORDER

The court denies defendant Houman Vosoghi, M.D.’s motion for summary judgment or, in the alternative, summary adjudication, on plaintiff Shahnaz Bahadori’s Second Amended Complaint.

The court orders plaintiff Shahnaz Bahadori to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 6, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court