Judge Thomas Falls, Case 20STCV04485 2022-09-21 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

RE: Ismael Robles v. Emanate Health Foothill Presbyterian Hospital, et al. (20STCV04485)

Defendant Emanate Health Foothill Presbyterian Hospital’s MOTION FOR RECONSIDERATION

Defendant Emanate Health Foothill Presbyterian Hospital’s MOTION FOR RECONSIDERATION is DENIED.

This is a medical malpractice case. Plaintiff Ismael Robles (“Plaintiff”) alleges the following against Defendants Emanate Health Foothill Presbyterian Hospital (erroneously separately sued as Citrus Valley Health Partners) (“Defendant Emanate” or “Defendant”); Dr. Miguel Alejandro Garcia; Nexxrad Teleradiology Partners; Dr. Edward A. Cefala; and Dr. Gabriel Ramirez (collectively, “Defendants”): On or about February 10, 2019, Plaintiff (then 24 years old) presented to the emergency department of Foothill Presbyterian Hospital with numbness and weakness to the entire left side of his body, vomiting, nausea and dizziness, where Dr. Garcia ordered was ordered a CT head scan. According to Plaintiff, Drs. Cefala and Ramirez misinterpreted the radiological exams and also failed to order complete a CT Angiogram, an MRA, and a consultation with a neurologist, thereby prematurely discharging Plaintiff. The next day, Plaintiff was hospitalized for an acute ischemic stroke.[1]

On February 4, 2020, Plaintiff filed suit against Defendants and Does 1-60 for medical negligence.

On February 19, 2021, Nexxrad Teleradiology Partners and Dr. Ramirez filed a Motion for Summary Judgment, which was granted on May 10, 2021. The motion was unopposed by Plaintiff.

On February 9, 2022, Defendant Emanate filed a Motion for Summary Judgment, which the court denied on May 18, 2022.

On May 27, 2022, Defendant Emanate filed the instant Motion for Reconsideration (“Motion”).

Defendant brings forth the Motion pursuant to Code of Civil Procedure section 1008.

A formal notice of ruling is required to set the time limit running to file a motion for reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).)

Here, on May 18, 2022, the court clerk filed a Certificate of Mailing. Nine days later, on Friday, May 27, 2022, Defendant filed the instant Motion.

Therefore, as the motion was filed before the 10-day limit, the motion is timely.

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Defendant brings forth the instant motion on the grounds that the court erred in its ruling by “not also definitely ruling on the issue of Hospital’s direct liability, as presented in the first issue for summary adjudication, and as supported by the Declaration of Dr. Barcay”, which constitutes as new circumstances.[2] (Motion p. 4:16-26.)

In Opposition, Plaintiff summarily avers that the motion “is simply defense counsel disliking the proper ruling of the court and wanting it changed. That is not what CCP 1008 is for.” (Opp. p. 3.)

Here, for reasons the two reasons to be discussed below, the court agrees with Plaintiff that this motion is guised as Defendant’s third bite at the apple.[3]

First, the declaration of Defense Counsel Karine Mkrtchyan is nothing more than an authentication of various exhibits.[4] (Motion p. 9 of 102 of PDF.)

Here, while the statute requires that the affidavit state (a) the type of application (e.g., “Defendant’s MSJ”), (b) the date of the application, (c) the judge to whom it was made, (d) the order that was made on the application, and (e) the new or different facts, circumstances, or law that the motion is based upon, no such information is provided. Effectively, without the submission of an affidavit that complies with the statutory requirements, Defendant’s Motion is one without an affidavit.

In its Reply, Defendant fails to address this deficiency, even though noted in Plaintiff’s Opposition.

Therefore, without an affidavit, the Motion is invalid. (See Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1049 [“Branner's motion was invalid when filed because it failed to comply with the statutory procedural requirement that the motion contain the requisite affidavit. But could Branner's motion be transformed from invalid to valid when the trial court later allowed him to file the affidavit? We think not.”]) (italics original).[5]

2. The Court Considered Dr. Barcay’s Evidence and an MSA as to the 1^st Issue was Improper

Next, Defendant argues that the court did not rule on the issue of the Hospital’s direct liability as it did not address Dr. Barcay’s expert evidence, and had it considered such evidence, granting Defendant’s MSA as to the 1^st issue on the Hospital’s employees would have been the correct ruling.[6] (Motion p. 4, citing Johnston v. Corrigan (2005) 127 Cal.App.4th 553 [stands for the proposition that a trial court’s failure to consider timely filed memorandum of points and authorities is a sufficient showing of new circumstances].) The court disagrees.

During the lengthy oral argument, Defendant heavily focused on the issue of ostensible agency. Correspondingly, the court clarified whether Dr. Barcay’s evidence was even relevant “at this point because the theory that we’re seeing here is that all these doctors are part of the responsibility, they’re responsible on [the] agency issue and [it] has really nothing to do with nurses or anybody else[.]” (See Final Ruling, p. 6, fn. 3, quoting Transcript p. 27:2-16.) Plaintiff’s Counsel stated that is the “crux of the issue” and Defense Counsel did not contend otherwise.[7] Accordingly, having confirmed the dispositive issue was whether Defendant demonstrated that it did not owe Plaintiff a duty for any alleged medical negligence of Dr. Garcia or Dr. Cefala because they were purportedly independent contractors, the court focused its analysis on whether Kellie Nunez’s declaration establishes that Plaintiff was given notice that the physicians were not employees. (See also MSJ p. 13 [“Because defendant Emanate Health Foothill Presbyterian Hospital has demonstrated that the first (and only) cause of action contained in plaintiff's complaint for medical negligence is without merit and has demonstrated that the hospital did not owe plaintiff a duty for the alleged medical negligence of Dr. Garcia and/or Dr. Cefala, Emanate Health Foothill Presbyterian Hospital is entitled to summary judgment in its favor.”]) (emphasis added). However, as Kelly Nunez’s failed to establish that the doctors were independent contractors, Defendant failed to meet its burden that it did not owe Plaintiff a duty. Accordingly, determining there remained a triable issue of material fact as to the issue of duty, summary adjudication as to the issue of ostensible agency was inappropriate. (See MSJ p. 14:13-15 [“Accordingly, alternative to summary judgment, the first cause of action contained in plaintiff's complaint and the issue of lack of duty should be summarily adjudicated in favor of defendant Emanate Health Foothill Presbyterian Hospital.”].)

However, putting the issue of ostensible agency aside, the court will elaborate on footnote 2 in its Final Ruling as to why Dr. Barcay’s evidence failed carry Defendant’s burden on the issue of liability for the actions or inactions of its nursing, technicians, and employees, i.e., non-physicians. (See Final Ruling, p. 4, fn. 2 [“Without getting into detail as it is not pertinent for the instant motion, the same defect affected Dr. Barcay’s expert declaration.”].)

Dr. David Barcay is board certified in Emergency Medicine. (Motion p. 3.) In Dr. Barcay's expert opinion, to a reasonable degree of medical probability, the care and treatment rendered to Ismael Robles by nurses, technicians, and employees at Emanate Health Foothill Presbyterian Hospital complied with the standard of care in the community by a hospital during Ismael Robles' emergency department visit on February 10, 2019. (Index to Evidence pp. 4-11 of 25 of PDF.)

The seminal case of Kelley v. Trunk (1998) 66 Cal.App.4th 519 is squarely on point and provides the legal framework necessary to resolve the sufficiency of Defendant’s evidence. In Kelley, a plaintiff presented to a hospital for a deep laceration. The laceration was stitched and plaintiff was given medicine. The plaintiff continued to be in pain but rather than inquire about the symptoms or request that plaintiff be re-examined, Dr. Trunk referred him to a different physician. About one week later, the plaintiff required surgery. One of the physicians, Dr. Trunk, moved for summary judgment after the plaintiff sued him alleging that Plaintiff had lost use of his arm and other damage as a pain of negligent medical. In support of the motion, Dr. Trunk submitted the declaration of another physician, Dr. Herndon. Dr. Herndon’s declaration was a, reciting his credentials (which were substantial), and listed the medical records Dr. Herndon had reviewed. The appellate court found that the trial court improperly granted summary judgment because primarily because (1) Dr. Herndon’s declaration did not disclose the matter relied on in forming the opinion express and (2) his opinion was unsupported by reasons or explanations. Specifically, the court reasoned that:

What was the nature of the disease or condition that required Kelley's surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley's injury? Herndon's declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks's burden in moving for summary judgment.

Similarly, here, Dr. Barcay’s declaration, which consisted mostly of the medical facts with a mere page and a half opinion provides conclusions that:

- He is familiar with the standard of care and here the hospital nurses, technicians, employees, and non-employees complied with the applicable standard of care (Decl. p. 6),

- It his opinion that the treatment rendered complied with the standard of care in the community,

- It is his opinion that decision-making to admit or discharge a patient rest exclusively with the physicians,

In short, Dr. Barcay’s declaration essentially reads that since “[t]he nurses thoroughly documented and notified Mr. Robles' respiratory status, blood pressures, heart rate, laboratory findings, and neurologic status,” that it is “is outside the scope of nursing staff to interpret any of the radiologic imaging (e.g. x-ray, CT scan, MRI scan),” and that medical decisions otherwise lie in the discretion of the treating physician, “nothing Emanate Health Foothill Presbyterian Hospital, by its nursing, technicians, and employees, i.e. nonphysicians, did or failed to do, caused or contributed to Mr. Robles' injuries.” (Barcay Decl. p. 7.) But such a conclusion is drawn without mention as to the exact standard of care for nurses/non-physician employees. What’s more, Dr. Barcay states that the “hospital’s role is to provide the necessary equipment, nursing, and support staff and other resources.” (Barcay Decl., ¶6) (emphasis added). Yet, his declaration provides no facts as to whether the Hospital complied with this role.

Consequently, absent reasons or explanations, the court finds Dr. Barcay’s evidence to be nothing more than a “laconic expert declaration . . . which provide[s] only an ultimate opinion, unsupported by reasoned explanation.” (Id. at 525.)

To the extent that Defendant argues “Defense experts are permitted to be more ‘conclusory’ than are plaintiff's experts,” that standard is inapplicable here as Dr. Barcay’s expert testimony was short on any explanation. (Motion p. 6:6-7.) Defendant heavily relies on Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493 to support its proposition. The court finds the case inapplicable. For one, the case does not provide any excerpts from the expert’s declarations to accurately distinguish between the instant facts and the facts of that case. Additionally, Bushling still abided by the evidentiary standard set forth by Kelley. (Id. at 510, citing Kelley, supra, 66 Cal.App.4th at p. 519 [“expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.”].) Furthermore, even assuming the court misinterpreted Kelley, reconsideration cannot be granted based on such claims because this is not a “new” or “different” matter. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [“Respondent argues that the trial court misinterpreted California law in its initial decision . . . Respondent's first contention is utterly specious. What respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. Since in almost all instances, the losing party will believe that the trial court's “different” interpretation of the law or facts was erroneous . . . .”].)

Accordingly, as Dr. Barcay’s evidence was inadmissible (i.e., failed to create no triable issues of material fact as to standard of care and causation), then it failed to dispose of the entire cause of action.

Therefore, and as noted by Plaintiff in Opposition, granting the MSA as to the 1^st cause of action for negligence as to the Hospital’s employees would have been improper because “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Based on the foregoing, this motion not only fails for Defendant’s failure to provide a statutorily compliant affidavit, but most importantly, because the Motion presents no new circumstances.

[1] In sum, the complaint alleges that the Hospital was directly liable for its own negligence (negligently supervising and training employees) and vicariously liable for the negligence of its employees and ostensible agents.

[2] In its MSJ/MSA, Defendant sought (1) summary adjudication of its direct liability for its employees arguing that the Hospital complied with the standard of care and that the Hospital did not cause Plaintiff’s harm and (2) summary adjudication as to liability based upon ostensible agency. (Opp. p. 3.)

[3] On July 1, 2022, the Second Appellate District denied Defendant’s petition for peremptory writ, writ of mandate or other relief, and request for immediate stay of superior court proceedings.

[4] A motion may use declaration instead of affidavit. (Code Civ. Proc., § 2015.5.)

[5] That said, assuming arguendo the affidavit was statutorily compliant, the court will address the Defendant’s substantive argument(s).

[6] Even if the court did not explain why Dr. Barcay’s evidence was inadmissible, the court considered the evidence to even reach that conclusion.

[7] And Defendant’s Reply does not dispute this as it states that the “Hospital and its counsel made no such concessions,” further evidencing Defendant’s silence on the issue. (Reply p. 8:6-7.)