Judge: Steven A. Ellis, Case: 19STCV44677, Date: 2024-06-10 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV44677    Hearing Date: June 10, 2024    Dept: 29

Motion for Summary Judgment filed by Defendant 90210 Surgery Medical Center LLC.

TENTATIVE

The Motion for Summary Judgment, filed by 90210 Surgery Medical Center LLC, is GRANTED.

Background

On December 13, 2019, Deborah Augusta Ahmad (“Plaintiff”) filed a complaint against Joseph Tu, M.D., Roxbury Surgery Center, Inc. and Does 1 through 10 for Medical Malpractice arising out of an epidural treatment leading to a fall on September 18, 2018.

On May 15, 2020, Dr. Tu filed an answer. Summary Judgment was granted in Dr. Tu’s favor on May 13, 2022.

On April 13, 2022, Plaintiff amended her complaint to name Roxbury Surgery Center LLC as Doe 1.

On May 13, 2022, Plaintiff amended her complaint to name 90210 Surgery Medical Center LLC (“Defendant”) as Doe 2.

Defendant filed its answer to the complaint on July 27, 2022.

On December 19, 2022, the Court dismissed the causes of action in the complaint against Roxbury Surgery Center, Inc. and Roxbury Surgery Center LLC without prejudice.

On December 8, 2023, Defendant filed this motion for summary judgment.

No opposition has been filed.

Legal Standard

“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.) 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion 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.)

Request for Judicial Notice

Defendant requests judicial notice of this Curt’s ruling on Dr. Tu’s motion for summary judgment, Plaintiff’s complaint, Dr. Tu’s separate statement filed with his motion for summary judgment, and the amendment to complaint. The Court GRANTS Defendant’s request as the records are all within this Court’s docket for this matter.

Discussion

On September 18, 2018, Plaintiff underwent an epidural steroid injection by Dr. TU at Defendant’s facilities. (Undisputed Material Fact (“UMF”), No. 1.) Plaintiff complained of numbness in her leg after the procedure, and when she went to stand, Plaintiff fell onto her left side. (UMF, Nos. 2, 7.)

On September 17, 2019, Plaintiff served a notice to intent to sue on Dr. Tu and the Roxbury Surgery Center. (UMF, No. 18.) Plaintiff’s complaint was filed on December 13, 2019. (UMF, No. 19.)

Plaintiff knew at the time of the procedure she was at Defendant’s facilities, and acknowledges that she read documents on the date of the procedure on Defendant’s letterhead. (UMF, Nos. 36, 37.) Plaintiff signed an authorization to release medical information on Defendant’s letterhead for her medical records on August 8, 2019. (UMF, No. 39.) Plaintiff filed suit against Defendant on May 13, 2022. (UMF, No. 40.)

Defendant moves for summary judgment on two grounds: (1) that as a matter of law the claim is barred by the statute of limitations; and (2) that Plaintiff cannot establish the necessary elements for a medical malpractice claim against Defendant.

Statute of Limitations

In a medical malpractice claim, “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code of Civ. Proc., § 340.5.)

Defendant contends the injury was sustained on September 18, 2018.  She served a notice of intent to sue Dr, Tu on September 17, 2019.  If Plaintiff had discovered her injury by that date (as appears to be the case), Plaintiff would have needed to sue Defendant by September 17, 2020.  Alternatively, at the latest, she needed to sue Defendant by three years after the date of injury, or by September 18, 2021.

Plaintiff did not name Defendant as a Doe until May 13, 2022, after both of those dates.

In many circumstances, the naming of a Doe defendant is viewed as relating back to the date of the filing of the complaint (here, on December 13, 2019).  But the relation back doctrine does not apply when, at the time of the filing of the complaint, a plaintiff was actually aware of the facts giving her a cause of action against the defendant.  (Hahn v. N.Y. Air Brake (2022) 77 Cal.App.5th 895, 899-900.)

Here, the undisputed facts show that by no later than August 2019, before she filed the complaint, Plaintiff knew of the facts giving her a cause of action against Defendant.  In her deposition, Plaintiff stated that she knew her procedure took place at 90210 Surgery Medical Center at the time of the procedure. (Exh. B, 5:24-25, 6:1-6.) Plaintiff also states that she knew Defendant followed up with a phone call. (Id., 59:16-20.) Plaintiff further identifies several documents from Defendant, with Defendant’s name on them, from the date of the incident. (Id., 70:18-21, 71:11-16, 72:9-14, 76:18-25, 77:1, 77:25, 78:1-7, 78:23-25, 79:1-19, 82:16-25, 83:1-15, 84:8-25, 85:1-3, 119:2-23; see also Exh. E.) Defendant lastly present an authorization to release healthcare information form from Plaintiff allowing Defendant to release medical information from the September 18, 2018 procedure; the form was on signed August 8, 2019. (Exh. N.)

The Court finds that Defendant has met its initial burden on summary judgment of showing that the statute of limitations provides “a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)  This shifts the burden to Plaintiff to show that a “triable issue of one or more material facts exists as to the … defense.” (Ibid.)  Plaintiff has not filed an opposition and therefore has not done so. 

Accordingly, for this reason alone, Defendant has shown that it is entitled to judgment as a matter of law.  The motion is granted on this basis.

No Breach of Duty

In a medical negligence action a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of [the] 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.” (Galvez v. Frields (2001) 88 Cal.App.4tha 1410, 1420; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02.)  “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008), 159 Cal.App.4th 463, 467.) 

A medical professional breaches the duty of professional care by failing to act in accordance with the prevailing industry standard of care. (See Folk v. Kilk (1975) 53 Cal.App.3d 176, 186.) “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 …, unless the conduct required by the particular circumstances is within the common knowledge of the layman.’” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and supports [the] motion with expert declarations that [their] conduct fell within the community standard of care, [the defendant] 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, 984-985.)¿ An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider.¿¿(Starr v.¿Mooslin¿(1971) 14 Cal.App.3d 988, 999.)¿

Here, Defendant presents the declaration of Kevin P. Becker, M.D., who is board certified in anesthesiology.  (Becker Decl., ¶ 1.) Dr. Becker is familiar with the standard of care in the medical profession for physicians and medical facilities practicing anesthesiology and pain management as well as post-procedure care.  (Id., ¶ 5.)

Dr. Becker testifies that the materials he has reviewed include the complaint and the medical records of Defendant’s treatment and care of Plaintiff. (Id., ¶ 6.) Dr. Becker recounts in detail the events occurring on the date of the procedure and thereafter.  (Id., ¶¶ 8-23.)

Dr. Becker opines that Defendant’s care and treatment of Plaintiff complied with the standard of care at all times. (Id., ¶¶ 24-28.)

Dr. Becker’s opinion testimony is “evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) The expert opinion testimony of Dr. Becker is evidence that Defendant complied with its duties under California law and the standard of care for a reasonably careful medical facilities under similar circumstances.

With this evidence, Defendant has satisfied the initial burden of showing that one or more elements of the professional negligence cause of action in the complaint cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) This shifts the burden to Plaintiff to show that there is a triable issue of one or more material facts as to the causes of action.  (Ibid.)  Plaintiff has not filed an opposition and therefore has not done so. 

Accordingly, for this additional and independent reason, Defendant has shown that it is entitled to judgment as a matter of law.  The motion is granted on this independent basis as well.

Conclusion

The Court GRANTS Defendant’s motion for summary judgment.

Moving Party is to give notice.