Judge Salvatore Sirna, Case Number: 20STCV18421, Date: 2023-05-22 Tentative Ruling

Judge: Salvatore Sirna, Case: 20STCV18421, Date: 2023-05-22 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 20STCV18421 Hearing Date: May 22, 2023 Dept: G

Defendant Emanate Health Foothill Presbyterian Hospital’s Motion for Summary Judgment

Respondent: NO OPPOSITION (Due May 8, 2023)

TENTATIVE RULING

Defendant Emanate Health Foothill Presbyterian Hospital’s Motion for Summary Judgment is GRANTED.

BACKGROUND

This is a medical malpractice action. On May 17, 2019, Plaintiff George Page was admitted to the Emanate Health Foothill Presbyterian Hospital (Emanate Health) for a sigmoid colectomy and primary anastomosis procedure performed by Myron Mariano, M.D. (Dr. Mariano) after a cancerous mass was discovered in George Page’s sigmoid colon. After George Page began experiencing complications, Dr. Mariano performed a laparotomy on May 24 and discovered an anastomotic leak at the site of the previous procedure. Dr. Mariano then performed a resection of the anastomosis and created a colostomy. On May 29, George Page had to be intubated due to respiratory distress. George Page was also diagnosed with acute renal failure, placed on hemodialysis, and underwent multiple procedures to treat gastrointestinal bleeding and ulcers. On July 3, George Page was discharged from Emanate Health and transferred to a long-term acute care facility.

On May 14, 2020, George Page and George Page’s wife, Nancy Page (collectively, Plaintiffs), filed a complaint against Emanate Health; Dr. Mariano; Thai V. Le, M.D. (Dr. Le); Kindred Hospital-San Gabriel Valley (Kindred Hospital); and Does 1-100, alleging (1) medical negligence, and (2) loss of consortium.

On May 7, 2021, Kindred Health filed a petition to compel arbitration of Plaintiffs’ claims. On September 16, the court granted Kindred Health’s motion and on February 4, 2022, the court stayed proceedings pending the outcome of arbitration. On June 24, Plaintiffs settled with Kindred Health and dismissed them from the action.

On October 17, 2022, Emanate Health (Defendant) filed the present motion for summary judgment. On December 9, Plaintiffs settled with Dr. Mariano and dismissed Dr. Mariano from the action.

A hearing on the present motion is set for May 22, 2023, along with a motion to continue trial by Dr. Le and a status conference. A final status conference is also set for August 3, along with a jury trial on August 18.

ANALYSIS

Defendant moves for summary judgment on Plaintiffs’ medical negligence and loss of consortium claims. For the following reasons, the court GRANTS Defendant’s motion.

Legal Standard

A motion for summary judgment or adjudication provides “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.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

Medical Negligence

Defendant argues Defendant is entitled to summary judgment on George Page’s medical negligence claim because Defendant complied with and did not breach the relevant standard of care. The court agrees.

Legal Standard

A cause of action for medical negligence consists of 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.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488 et seq., p. 2749.)

“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 [Citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) And “[w]hen a defendant moves for summary judgment and supports [their] motion with expert declarations that [their] conduct fell within the community standard of care, [they are] 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, quoting Hutchinson v. United States (9th Cir. 1988) 838 F.2d 390, 392.) Similarly, “[w]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569.) Plaintiffs must establish “that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of [their] injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

Discussion

In this case, Defendant relies on the expert testimony of Leo Gordon, M.D. (Dr. Gordon). After reviewing the Complaint, George Page’s medical records, George Page’s medical and radiology images, and Plaintiffs’ deposition transcripts, Dr. Gordon opined that Defendant’s staff complied with the applicable surgical standard of care at all times to a reasonable degree of medical probability. (Dr. Gordon Decl., ¶ 4, 6.) Dr. Gordon also opined that no act or omission by Defendant’s staff caused, contributed to, or was a substantial factor in the alleged damages and injuries claimed by George Page. (Dr. Gordon Decl., ¶ 6.)

In response, Plaintiffs failed to file an opposition and did not provide expert opinion or testimony to counter Dr. Gordon’s opinions. As such, the court finds that Defendant provided uncontested evidence that established (1) Defendant’s treatment did not fall below the acceptable standard of care and (2) Defendant did not cause George Page’s alleged injuries. Therefore, Defendant is entitled to summary judgment on George Page’s medical negligence claim.

Accordingly, Defendant’s motion for summary judgment is GRANTED as to the first cause of action for medical negligence.

Loss of Consortium

Defendant contends they are entitled to summary judgment on Nancy Page’s cause of action for loss of consortium because they were not negligent in their treatment of George Page. The court agrees.

A claim for loss of consortium consists of the following elements: “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2.) And “it stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable tortious injury.” (Id., at p. 746.)

In this case, Nancy Page’s loss of consortium claim is based on the allegation that Defendant was medically negligent in treating George Page. But as detailed above, Defendant provided uncontested evidence that establishes Defendant’s treatment was not medically negligent. Thus, without a tortious injury to George Page, Nancy Page’s claim for loss of consortium necessarily fails.

Defendant’s motion for summary judgment is GRANTED as to Plaintiffs’ cause of action for loss of consortium.

CONCLUSION

Based on the foregoing, the court GRANTS Defendant’s motion for summary judgment on Plaintiffs’ claims.

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Defendant Thai V. Le, M.D.’s Motion for a Continuance of Trial

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant Thai V. Le, M.D.’s Motion for a Continuance of Trial is GRANTED. The court will discuss with the parties available trial dates at the hearing on May 22, 2023.

BACKGROUND

On October 17, 2022, Emanate Health filed a motion for summary judgment. On December 9, Plaintiffs settled with Dr. Mariano and dismissed Dr. Mariano from the action.

On March 17, 2023, Dr. Le (Defendant) filed the present motion. A hearing on the present motion is set for May 22, along with a Emanate Health’s motion for summary judgment and a status conference. A final status conference is also set for August 3, along with a jury trial on August 18.

DISCUSSION

Defendant requests for the trial date of August 18, 2023, to be continued to at least July 31, 2024, or later. For the following reasons, the court agrees.

Legal Standard

Because trial dates are firm and all parties and counsel must regard the set trial date as certain, continuances are disfavored. (Cal. Rules of Court 3.1332(a), (c).) Therefore, “[t]he court may grant a continuance only on an affirmative showing of good cause requiring the continuance” which include the following: “(1) The unavailability of an essential lay or expert witness because of death, illness, or other circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party . . . ; (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court 3.1332(c).)

The court may also consider the following factors: “(1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court 3.1332(d).)

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) Ruling on trial continuances involves court discretion, based upon all of the relevant facts and circumstances, the specific factors enumerated in Rule 3.1332, and all competing interests guided by the strong public policy in favor of deciding cases on the merits. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1398-1399.)

Analysis

In this case, Defendant argues for a continuance of trial based on Defendant’s intent to file a motion for summary judgment. Although this action was filed May 14, 2020, Defendant was not served until May 22, 2021, and the action was stayed from February 4, 2022, to June 15, 2022, after Kindred Health’s successful motion to compel arbitration. On January 11, 2023, Defendant’s counsel attempted to schedule a motion for summary judgment, but the earliest available date was on April 30, 2024, after the scheduled trial date. (Masutani Decl., ¶ 7.) Based on these circumstances, the court finds Defendant has demonstrated good cause.

According to Defendant’s counsel, Plaintiffs’ counsel was amendable to stipulating for a continuance and the court is not in receipt of any opposition from Plaintiffs. (Masutani Decl., ¶ 7.)

Therefore, Defendant’s motion is GRANTED.

CONCLUSION

Based on the foregoing, the court GRANTS Defendant’s motion to continue trial. The court will discuss with the parties available trial dates at the hearing on May 22, 2023.