Judge: Stephanie M. Bowick, Case: 21STCV31953, Date: 2024-11-21 Tentative Ruling
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Case Number: 21STCV31953 Hearing Date: November 21, 2024 Dept: 19
After full consideration of the papers and evidence filed, inferences reasonably drawn therefrom, and oral argument at the hearing, Defendant Pouya Benyamini, M.D.’s unopposed Motion for Summary Judgment is GRANTED.
Defendant Pouya Benyamini, M.D. to give notice.
This case arises out of alleged wrongful death. In the
First Amended Complaint (“FAC”), Plaintiffs Gloria Hall (“Decedent”), by
and through her Successors-In-Interest Sharol Johnson and Dante Hall, Sharol
Johnson, and Dante Hall (collectively, “Plaintiffs”) bring suit against
Defendants Olympia Medical
Center, Medical Staff of Olympia Medical Center, Mehradad Vosoghi, M.D., Dan Naim,
Pouya Benyamini, Alecto Healthcare Services LLC, Salam Alkasspooles, and Linda
Vuu, M.D. (collectively, “Defendants”) alleging the following causes of action
1. Elder Abuse – Custodial Neglect and
Reckless, Willful Conduct (Welf. & Inst. Code, § 15600 et seq.);
2. Negligence/Professional Negligence;
3. Wrongful Death; and
4. Intentional Infliction of Emotional Distress.
Plaintiffs allege that Defendants, including Defendant Benyamini, who is alleged to be a physician, surgeon, and medical doctor employed by Olympia Medical Center, (FAC, ¶¶ 14, 24), failed to provide proper medical care to Decedent while Decedent was a patient at Olympia Medical Center.
The FAC alleges that, on or about August 1, 2020, Decedent suffered a ground-level fall and was transported by ambulance to Olympia Medical Center’s emergency department on August 2, 2020 where she was diagnosed with a pubis ramus fracture for which she planned to receive treatment for and return home. (Id at ¶ 30.)
The FAC alleges that, on August 7, 2020, Defendant Benyamini evaluated Decedent “due to her distended gallbladder, colitis, and massive constipation,” reviewed the CT scans and noted for the first time that Decedent had clips in her stomach from a previous surgery,” but “failed to inquire or do an additional medical assessment to determine the details of that prior surgery.” (Id. at ¶ 38.) The FAC alleges that “[a] ¿decubitus ulcer on the coccyx was n¿oted and a disimpaction was performed at Decedent’s bedside, but that Defendant Benyamini “determined that no surgical intervention was necessary.” (Id.) Additionally, the FAC alleges that Defendant Benyamini “¿noted that he evaluated Decedent’s sacral wound with nursing; however no decubitus ulcer was added to his assessment.” (Id. at ¶ 46.)
Plaintiffs allege that Olympia’s medical records noting that Defendant Benyamini spoke to Plaintiff Sharol Johnson, Decedent’s daughter, and “recommended that Decedent not receive surgery to repair the perforation, despite her condition being listed as critical” were false, and that Defendant Benyamini instead called Plaintiff Sharol Johnson informing her that “Decedent required emergency surgery or she would not make it through the night,” that Decedent’s system was being “poisoned,” and that there “were no other options and that surgery is required or morbidity/mortality would result.” (Id. at ¶ 57; see id. at ¶ 1.) Therefore, the FAC alleges that Plaintiff Sharol Johnson “consented to the surgery to save her mother's life,” but that Defendant Benyamini “did not inform Sharol Johnson of any risks associated with performing the surgery; she was only informed of the risk of not performing the surgery.” (Id.)
Plaintiffs allege that, on August 27, 2020, Defendant Benyamini, “¿without informing the family of the associated risk or the details of the operation,” “¿performed a massive operation on Decedent….” (Id. at ¶ 59.)
Defendant Benyamini filed the instant Motion for Summary Judgment (the “Motion”).
Pursuant to Code of Civil Procedure section 437c, Defendant Benyamini moves for summary judgment on the grounds that Plaintiffs cannot establish the necessary elements of their claims against him because there is no triable issue of fact as to whether he breached a duty to Decedent causing Decedent’s death.
I. Procedural Requirements
The Code of Civil Procedure requires that the notice of motion and supporting paper be served on all other parties at least 75 days prior to the hearing date, and that the motion be heard no later than 30 days prior to trial. (Code Civ. Proc., §§ 437c(a)(2), 437c(a)(3).)
Further, the Code of Civil Procedure prescribes that:
The
supporting papers shall include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are undisputed.
Each of the material facts stated shall be followed by a reference to the
supporting evidence. The failure to comply with this requirement of a separate
statement may in the court's discretion constitute a sufficient ground for
denial of the motion.
(Code Civil Proc., § 437c(b)(1); see also Cal. R. Ct., 3.1350(c)(2) & (d).)
Here, Defendant Benyamini provides the required separate
statement. The Motion was filed and served more than 75 days before the hearing
date and will be heard more than 30 days prior to trial. The Court finds the Motion
timely and properly filed.
II. LEGAL STANDARDS
Code of Civil Procedure section 437c, subdivision (c) provides that:
The
motion for 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. In determining if the
papers show that there is no triable issue as to any material fact, the court
shall consider all of the evidence set forth in the papers, except the evidence
to which objections have been made and sustained by the court, and all
inferences reasonably deducible from the evidence, except summary judgment
shall not be granted by the court based on inferences reasonably deducible from
the evidence if contradicted by other inferences or evidence that raise a
triable issue as to any material fact.
(Code Civ. Proc., § 437c(c).)
Further, pursuant to Code of Civil Procedure section 437c, subdivision (f)(1):
“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 that party contends that the cause
of action has no merit or that there is no affirmative defense thereto, or that
there is no merit to an affirmative defense as to any cause of action, or both,
or that there is no merit to a claim for damages, as specified in Section 3294
of the Civil Code, or that one or more defendants either owed or did not owe a
duty to the plaintiff or plaintiffs.”
(Code Civil Proc., § 437c(f)(1).)
The purpose of the law of summary judgment 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.) In analyzing motions for summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Pursuant to Code of Civil Procedure section 437c, subdivision (p)(2):
A
defendant or cross-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 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. The plaintiff or
cross-complainant shall not rely upon the allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material fact
exists as to the cause of action or a defense thereto.
(Code Civ. Proc., § 437c(p)(2).)
The California Supreme Court in Aguilar, supra, laid down the requisite burden for the party moving for summary judgment:
From
commencement to conclusion, the moving party bears the burden of persuasion
that there is no genuine issue of material fact and that he is entitled to
judgment as a matter of law. There is a genuine issue of material fact if, and
only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof. Initially, the moving party bears a burden of
production to make a prima facie showing of the nonexistence of any genuine
issue of material fact. If he carries his burden of production, he causes a
shift: the opposing party is then subjected to a burden of production of his
own to make a prima facie showing of the existence of a genuine issue of
material fact. How each party may carry his burden of persuasion and/or
production depends on which would bear what burden of proof at trial. Thus, if
a plaintiff who would bear the burden of proof by a preponderance of evidence
at trial moves for summary judgment, he must present evidence that would
require a reasonable trier of fact to find any underlying material fact more
likely than not.
(Aguilar, supra, 25 Cal.4th at 857.)
The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, supra, 135 Cal.App.4th at 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition, (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475), or where the opposition is weak. (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)
“[I]n ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party's separate statement of undisputed facts.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.) However, the court may in its discretion look to evidence outside the separate statement, subject to due process concerns. (Id. at 315-317.)
A moving defendant has two means by which to shift the burden of proof to the plaintiff to produce evidence creating a triable issue of fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon.” (Id. (citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590).) “Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Id. (citing Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 552-553, disapproved of on other grounds by Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235); see Code Civ. Proc., § 437c(p)(2).)
However, to shift the burden based on factually insufficient discovery responses, the moving defendant must show that plaintiff cannot reasonably obtain evidence to prove a cause of action, which is more than simply arguing that there is an absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)
III.
ANALYSIS
As an initial matter, on October 18, 2024, Plaintiffs filed a Notice of Non-Opposition stating that they do not oppose the Motion.
Defendant Benyamini moves for summary judgment on the grounds that there is no triable issue of fact regarding whether Defendant Benyamini failed to comply with the standard of case in his care and treatment of Decedent or that Defendant Benyamini’s conduct was a legal cause of Decedent’s injuries or death. (See Motion, pp. 9-12.)
Plaintiffs allege that Defendant Benyamini is liable for negligently providing care to Decedent. (See FAC at ¶¶ 38-74, 119, 142, 152.)
“The elements of a cause of action in tort for professional negligence are: (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; accord Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 612; see Brown v. Colm (1974) 11 Cal.3d 639, 642–643 [“It is settled that a doctor is required to apply that degree of skill, knowledge and care ordinarily exercised by other members of his profession under similar circumstances.”].)
“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) Thus, proof of the standard of ordinary care “is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than to its admissibility.” (Brown, supra, 11 Cal.3d 639, 643.) “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 (internal citation omitted) (quoting Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999); see Jambazian, supra, 25 Cal.App.4th at 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.”].) Competent opinion evidence by an expert that is wholly uncontradicted by any contrary opinions submitted on behalf of the opposing party will support the granting of a summary judgment. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172–173.)
Evidence Code section 720 states that:
(a)
A person is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates. Against the objection of
a party, such special knowledge, skill, experience, training, or education must
be shown before the witness may testify as an expert.
(b)
A witness’ special knowledge, skill, experience, training, or education may be
shown by any otherwise admissible evidence, including his own testimony.
(Evid. Code, § 720.)
Evidence Code section 801 provides that:
If
a witness is testifying as an expert, his testimony in the form of an opinion
is limited to such an opinion as is:
(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, unless an expert is precluded by law
from using such matter as a basis for his opinion.
(Evid. Code, § 801.)
Here, the Court finds that Dr. Frank Candela is qualified to testify as an expert regarding the prevailing standard of skill, knowledge, and care, and considers the declaration of Dr. Frank Candela as evidence in determining the applicable standard of care. (Frank Candela Decl., ¶¶ 1-5, Ex. A.)
The Court finds that the uncontroverted testimony of Dr. Frank Candela establishes that Defendant Benyamini did not breach any duty of care owed to Plaintiffs. (Candela Decl. at ¶¶ 6-7; see Defendant’s SSUMF Nos. 24-28.)
Based on this evidence, the Court finds that Defendant Benyamini sustains his initial burden to make a prima facie showing that there is no triable issue of material fact regarding whether he breached any duty of care owed to Plaintiffs.
Plaintiffs filed a Notice of Non-Opposition, has not produced any evidence in opposition to the Motion, and does not dispute any of the facts set forth in Defendant Benyamini’s separate statement.
Thus, the Court finds that Plaintiffs fail to sustain their burden to demonstrate the existence of a triable issue of fact.
Accordingly, the Court finds that Defendant Benyamini is entitled to judgment as a matter of law and GRANTS the Motion in its entirety.
Defendant Benyamini to give notice unless the parties waive notice at the hearing.
Defendant Benyamini shall file a form of judgment within
5 court days.