Judge Upinder S. Kalra, Case 19STCV45242 2023-05-02 Tentative Ruling

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1. An order granting Summary Adjudication as to causes of action for Medical Malpractice, Wrongful Death, Elder Abuse, Lack of Informed Consent, Medical Battery, Fiduciary Duty, Willful Misconduct, Negligent Hiring, Punitive Damages, and Loss of Consortium

1. Motion for Summary Adjudication as to Medical Malpractice, Wrongful Death, Lack of Informed Consent, Medical Battery, Fiduciary Duty, Negligent Hiring, and Loss of Consortium is GRANTED.

2. As to Elder Abuse, Punitive Damages and Willful Misconduct, the Motion is GRANTED as to Cedars-Sinai but the Court has questions as to Dr.Li.

On December 16, 2019, Plaintiffs Linda Benham, James Cook, Noelle Benham, Blake Benham, and Taylr Benham Cuneo (collectively, “Plaintiffs”) filed a complaint against Defendants Cedars-Sinai Medical Center, Cedars-Sinai Health System, Andrew J. Li, M.D., and Does 1-100 (collectively, “Defendants”). The First Amended Complaint was filed on January 6, 2021, which alleged the following causes of action: (1) medical malpractice; (2) elder abuse and dependent adult civil protection act, (3) intentional misrepresentation; (4) negligent misrepresentation, (5) falsification of medical records, (6) negligent hiring, retention, training, and supervision, (7) lack of informed consent; (8) medical battery; (9) breach of fiduciary duties; (10) willful misconduct; (11) fraudulent concealment; (12) fraud for false advertising and failing to provide services; (13) intentional infliction of emotional distress (“IIED”); (14) negligent infliction of emotional distress (“NIED”); (15) loss of consortium, (16) wrongful death.

The causes of action arise from the wrongful death of Plaintiff Decedent Linda Benham. Plaintiffs allege that Defendants treatment of Benham’s ovarian cancer treatment was improper and negligent. Because of this conduct, Decedent Benham underwent multiple surgeries, sustained prolonged pain, incurred substantial medical expenses and died.

The Defendants demurred to the First Amended Complaint, which the Court SUSTAINED, in part, with leave to amend as to cause of action 3, 4, 5, 11, 12, 13, and 14, and OVERRULED as to the rest of the causes of action. Plaintiffs did not provide an amended complaint.

On March 2, 2022, Defendants Cedars-Sinai Medical Center and Andrew J. Li, M.D filed a Motion for Summary Adjudication.

On April 12, 2022, Plaintiff filed an ex parte application to continue the Motion for three months from the scheduled May date. The following day, the court granted the application and continued the hearing to July 7, 2022

On July 14, 2022, the Court conducted an initial hearing on the motion for summary judgment.

On August 3, 2022, the Court conducted the second hearing on the motion for summary judgment. The matter was continued for additional discovery and very short supplemental briefing.[1]

On January 6, 2023, Defendants filed approximately 495 pages of supplemental materials.

On March 9, 2023, Plaintiffs filled approximately 247 pages of supplemental materials.

On March 22, 2023, Defendants filed approximately 253 pages of supplemental materials.

On March 23, 2023, Plaintiffs filled approximately 21 pages of supplemental materials.

On March 24, 2023, Defendants filed approximately 3 pages of supplemental materials.

On March 28, 2023, Plaintiffs filled approximately 12 pages of supplemental materials.

On March 29, 2023, Defendants filed approximately 3 pages of supplemental materials.

On April 5, 2023, the Court conducted the third hearing on the motion for summary judgment. Both parties agreed that they had been provided sufficient time to respond to the other sides’ evidence and argument. Moreover, neither side required any additional time to respond to the opposing parties. The Court scheduled the fourth and final hearing for May 2, 2023.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing such motions, 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). Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520). 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). A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (CCP § 437c(o)(2)). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (CCP § 437c(o)(1)-(2)).

First, Plaintiffs argue that declaration is undated and therefore, is inadmissible However, this has been cured. The Supplemental Declaration of Dr. Bristow filed on July 13, 2022, indicates that he inadvertently forgot to put the date when he signed the declaration, as he confirmed looking at his emails. Therefore, this argument fails.

Second, Plaintiffs contend that the declaration consists of inadmissible hearsay because Dr. Bristow and Dr. Lieu are testifying to the contents of the medical records. However, these records are hospital business records, and constitute an exception to the hearsay rule. Additionally, the custodian of records properly authenticated these medical records. (Exhibits in Support, Ex. GGGG, HHHH, IIII, filed 3/2/2022). “The medical records were properly authenticated as the hospital's business records, and as such, they are not hearsay. They are the type of records on which medical experts may and do rely in order to give expert testimony in a medical malpractice case. (Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 876 [263 Cal.Rptr.3d 397, 405, 49 Cal.App.5th 866, 876], review denied (Sept. 9, 2020)).

Plaintiff also argues that Sanchez prevents experts from testifying to case-specific facts. Plaintiff misunderstands Sanchez. Sanchez does not prohibit an expert from relying upon hearsay to form an opinion. Sanchez only prohibits an expert from regurgitating case specific hearsay under the guise of an opinion. Moreover, if the evidence is otherwise admissible, the expert can repeat the case specific hearsay. “What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez)). Certain documents, like medical records often contain multiple levels of hearsay. These statements cannot be admitted unless both levels have an exception. As the Court in Sanchez states, “in the case of the emergency room document, the report itself may be a business record (Evid.Code, § 1270 et seq.), while the patient's statement may qualify as a statement of the patient's existing mental or physical state (Evid.Code, § 1250, subd. (a)).” (Sanchez ,supra, 63 Cal.4th at p. 675.) Here, Defendants have properly authenticated the medical records and have satisfied the business record exception to the hearsay rule through the March 2, 2022 Declaration of Robin Solmayor. In addition, statements made to Dr. Li by Decedent would be statement of the patient’s existing mental or physical state. Even if the records themselves are not admissible, the opinions are still admissible.

Third, Plaintiff argues that these opinions are conclusory and do not provide an explanation for the stated opinion. In Zuniga, the Court stated “Expert opinion testimony may be based upon information furnished to the expert by others so long as the information is of a type reasonably relied upon by professionals in the relevant field. [Citations.] However, when the expert's opinion is not based on his own perception or knowledge, but depends instead upon information furnished by others, it is of little value unless the source is reliable.” (Zuniga v. Alexandria Care Center, LLC (2021) 67 Cal.App.5th 871, as modified (Aug. 13, 2021), reh'g denied (Aug. 30, 2021), review denied (Nov. 17, 2021)). Here, the Declaration of Dr. Bristow and Dr. Lieu indicate that they based their opinions on their experience. Dr. Bristow is a board-certified gynecological oncologist. These opinions were based on his background, experience, and skills as a gynecological oncologist as well as reviewing the authenticated medical records.

Dr. Lieu is board certified in radiology and in private practice with Newport Harbor Radiology Associates as well as the Director of Musculoskeletal Imaging at Hoag Hospital and Co-Director of Radiology Services at the Newport Imaging Center. (Dec. Lieu ¶ 1). These opinions were based on his background, experience, and skills as a radiologist, who is familiar with “interpreting pelvic and abdominal imaging” and “identifying complex cystic masses in the abdomen and pelvic regions” as well as reviewing the authenticated medical records. and radiologist.

Fourth, Plaintiff contends that the declaration has speculative opinions and are based on incorrect assumptions. These arguments raised by Plaintiff go to the merits of the opinions of Dr. Bristow and Dr. Lieu. “When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party's claims, the opposing party's burden is to produce a competent expert declaration to the contrary.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779). As stated above, the declarations are based on a review of the medical records as well as their experience, skills, and knowledge. Medical records are the types of information that expert witnesses review. In large part, the experts have satisfactorily demonstrated their expertise and that the proffered opinions are they types of opinions that experts in their field offer. There are a few exceptions that the Court will discuss in the body and have no bearing on this motion.

Fifth, the Court granted a continuance in order for Plaintiff to depose Dr. Bristow and Dr. Lieu. Plaintiff in fact deposed these experts.

The Request to Strike the Declaration of Dr. Bristow and Dr. Lieu is DENIED.

Plaintiff’s lodge 102 objections to Dr. Bristow’s declaration and Dr. Lieu’s declaration. The court sustains the following objections: 80, 82, 83, 86, 87, and 99. The remaining objections are overruled. OVERRULED, unless otherwise indicated below. is Nos. 3-72 are objections to those same paragraphs. No. 73 is paragraphs 73-91, in their entirety. Nos. 74-93 are objections to those same paragraphs.

· The above request to strike indicates that these declarations are valid, admissible, and the Plaintiffs’ grounds for objecting all fail. There is no multiple layer hearsay, as each layer is within an exception, as stated above. Experts cannot opine on the law. Moreover, Dr. Lieu’s paragraph 11 is improper expert opinion on the state of mind of Dr. Li. Even experts cannot opine on individuals subjective motives.

6. Sustained only as to the location of the CT scan being as occurring at Providence Tarzana Cedars Sinai Medical Center. In all other respects, overruled.

Defendant’s Objections to March 22, 2023 Supplemental Declaration of Nelle Behnam

2. Overruled. “[E]vidence of a statements of the declarant’s then existing state of mind, emotion or physical sensation (including a statement of intent, plan, . . . ) is not made inadmissible by the hearsay rule when: The evidence is offered to prove or explain acts or conduct of the declarant.” (Cal. Evidence section 1250(a)(2).) “A declarant’s prior statement of intent to do an act is admissible under § 1250(a)(2) to prove that the declarant in fact did the act.” (Evidence Code §1250,Comment.)

3. Overruled. “[E]vidence of a statements of the declarant’s then existing state of mind, emotion or physical sensation (including a statement of intent, plan, . . . ) is not made inadmissible by the hearsay rule when: The evidence is offered to prove or explain acts or conduct of the declarant.” (Cal. Evidence section 1250(a)(2).) “A declarant’s prior statement of intent to do an act is admissible under § 1250(a)(2) to prove that the declarant in fact did the act.” (Evidence Code §1250,Comment.)

The Court declines to rule on any other objections that are not expressly noted because they are not critical in resolving the summary adjudication/judgment.

Plaintiffs contend that Benham’s death was caused by the wrongful act or neglect of Defendants. In “‘any medical malpractice action, the plaintiff must establish: “(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.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122). “The elements of a wrongful death cause of action are “(1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ ” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1060, as modified on denial of reh'g (Dec. 13, 2018)).

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.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741).

Further, the court in Bromme stated that a plaintiff proves causation if it can demonstrate ““reasonable medical probability” that the negligence was sufficient of itself to bring about the death, i.e., the death was “more likely than not” the result of the negligence.” (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1499 (Bromme).) “[A] plaintiff who alleges a statutory cause of action for wrongful death arising from medical negligence must prove by reasonable medical probability based on competent expert testimony that a defendant's acts or omissions were a substantial factor in bringing about the decedent's death. Where the alleged negligence relates to the failure to diagnose and treat a potentially terminal condition, a plaintiff fails to satisfy the requisite causation if the evidence shows the decedent did not have a greater than 50 percent chance of survival had the defendant properly diagnosed and treated the condition.(Id. at pp. 1492–93.)

Defendants contend that the Plaintiffs cannot demonstrate medical malpractice as the Defendants were not the cause of Linda Benham’s death. The Court finds that Defendant has met its initial burden as to the causation element. Specifically, Defendant has presented the following evidence: On June 6, 2017, prior to decedent’s initial consultation with Dr. Li at Cedars-Sinai Medical Center, Benham underwent a CT Scan at Providence Tarzana Medical Center.[2] (Defendant’s 1/6/23 Supplemental Separate Statement (“SSS”) Issue (“I”) 1, ¶1.) The CT scan revealed “a large complex cystic left paraaortic mass which represented metastatic disease.” (SSS I1, ¶2.) Dr. Lieu and Dr. Barstow both staged this mass at Stage III as of June 6, 2017. (SSS I1, ¶3.) Dr. Lieu is a Board-certified diagnostic radiologist with a specialization that includes abdominal and pelvic imaging reviews hundreds of images a day. [3] Dr. Bristow is a Board-certified genealogical oncologist with over 20 years of experience. [4] According to Dr. Bristow, Stage III cancer “has a reasonable medical probability of a 30-40% survival rate” (SSS I1, ¶ 90). Specifically, Dr. Bristow testified that, “The survival for stage III ovarian cancer, whether all the masses are discovered or not, is 30 to 40 percent.” (Exhibit LLLL, p. 113:25-p. 114:2.)[5]

Therefore, the burden shifts to the Plaintiffs to demonstrate a triable issue of material fact.

Initially, Plaintiff presented no expert testimony on causation. The Court also granted the continuance on the hearing in order for Plaintiff to procure an expert.[6] On March 9, 2023, Plaintiff filed a thirteen-paragraph declaration of Dr. Andrew Green. One paragraph is dedicated to causation.

10. I respectfully disagree with Dr. Bristow’s opinion that Ms. Behnam was terminal at the time of initial presentation to Cedars and Dr. Andrew Li on June 13, 2017. It is my opinion that, even with the alleged paraaortic mass described by Dr. Lieu, Ms. Behnam had a reasonable probability of cure as of that date. Her probability of cure and four-year survival rate would be at least 50%. (3/9/23 Dec. Dr. Green, ¶10, emphasis added.)

“ ‘ “ ‘[A]n 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. [Citations.]’ [Citation.]” ’ [Citation, italics added.] ‘[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.’ [Citation, italics added.]” (Doe v. Good Samaritan Hosp. (2018) 23 Cal. App. 5th 653, 662.)

This opinion appears wholly conclusionary. The Court is unable to identify any facts upon which this opinion is based. The lack of factual detail leaves many essential facts unanswered, including: If not a paraaortic mass, what was it? What stage was it, Stage I, II, III, IV? And most lacking, if the mass was staged correctly at Stage III, as Dr. Bristow and Dr. Lieu opined, what was Behnam’s survival rate to a “reasonable medical probability” before Dr.Li assumed care of Benham? The lack of foundational facts is startling. As a result, this conclusionary opinion has no evidentiary value. Most significantly, it does not establish the presence of a material issue of fact. In other words, Dr. Green’s opinion simply disagreeing with Defendants’ experts by offering a different conclusion does not create a disputed issue of material fact. Accordingly, the Court sustains Defendants’ objection to paragraphs 10 and 11 of Dr. Green’s March 9, 2023 declaration.

Even if the Court did not sustain the objection as to Dr. Green’s opinion, it still falls far short of rising to the level of “reasonable medical probability” as opposed to mere possibility.

To be sure: “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical 'probability' and a medical 'possibility' needs little discussion. There can be many possible 'causes,' indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]” (Bromme v. Pavitt, supra, 5 Cal. App. 4th at p. 1498.) Without a factual foundation, at most, Dr. Green’s conclusion is a mere possibility.

“When a defendant moves for summary judgment and supports [the] motion with expert declarations that [the] conduct fell within the community standard of care, [defendant] is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 288–289). Plaintiffs have failed to present any competent, contradictory expert testimony, within a reasonable medical probability, on causation.

Thus, the Court is left with the following unrebutted opinions offered by two qualified experts with a reasonable medical probability: (1) Benham’s cancer was at Stage III before Dr. Li took over care for her; and, one competent expert who has opined with a reasonable medical probability that (2) Stage III cancers of this type have less than a 50 % chance of survival. In other words, even assuming negligence on the part of Dr. Li, the negligence was not the cause of death since decedent already had less than a 50 % chance of survival before Dr. Li had any contact with Benham.[7]

The Motion for Summary Adjudication as to the Medical Malpractice cause of action and the Wrongful Death cause of action is GRANTED.

California's Elder Abuse Act, Welfare & Institutions Code section 15657, requires a plaintiff to show at trial, by clear and convincing evidence, that: (1) the defendant is liable for physical abuse, neglect, or financial abuse of an elderly or dependent adult; and (2) that such abuse or neglect was done with malice, oppression, fraud, or recklessness.

As to Defendant Cedars-Sinai Medical Center, the Plaintiff has failed to satisfy Civil Code section 3294. As such, the Motion for Summary Adjudication as to Elder Abuse Cause of Action is GRANTED as to Cedars- Sinai Medical Center.

“A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives.”). “Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent – which sounds in negligence - arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” ((Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324).

“When a doctor recommends a particular procedure then he or she must disclose to the patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in accepting or rejecting the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343 [13 Cal.Rptr.2d 819].

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215). “In soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129). When a physician fails to disclose personal interests unrelated to the patient’s health, a cause of action for breach of fiduciary duty may arise. (See¿id.)¿

As indicated above, Defendant has met their burden on causation and Plaintiff has failed to raise a material issue of material fact on this issue. As such the claims based upon lack of informed consent and breach of fiduciary duty fail.

As to medical battery, Defendant has met its burden and Plaintiff has failed via specific facts that a triable issue of material facts exists. Namely, Plaintiff has presented no evidence that Dr. Li performed a procedure without Benham’s consent or that Dr. Li deliberately performed a procedure that exceeded the scope of consent.

The Motion for Summary Adjudication as to Causes of Action for Lack of Informed Consent, Medical Battery, and Fiduciary Duty is GRANTED.

A cause of action for negligent hiring, training, supervision and retention is an action for negligence. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815). When the negligent act occurs while a healthcare provider is rendering professional services, it is a claim for professional negligence. (Murillo v. Good Samaritan Hospital (1979) 99 Ca1.App.3d 50).

“The¿elements¿of¿a¿claim¿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.” (Paul v. Patton¿(2015) 235 Cal.App.4th 1088, 1095, internal quotations and citation omitted.) “[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 264, reh'g denied (Mar. 10, 2020), review denied (July 15, 2020)).

Generally, whether a defendant was negligent constitutes a question of fact for the jury. (Biles v. Richter (1988) 206 Cal.App.3d 325, 332; Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713) However, “where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1214, as modified on denial of reh'g (Dec. 8, 1997)).

As indicated above, Defendant has met their burden on causation and Plaintiff has failed to raise a material issue of material fact on this issue.

Accordingly, the Motion for Summary Adjudication as to the cause of action for Negligent Hiring is GRANTED.

A claim for loss of consortium has four 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…A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284–285).

Defendants argue that because this cause of action is related to the underlying negligence cause of action, which fails, this too shall fail. Plaintiffs do not raise an argument in their opposition as to this cause of action.

As indicated above, Defendant has met their burden on causation and Plaintiff has failed to raise a material issue of material fact on this issue.

The Motion for Summary Adjudication as to the cause of action for Loss of Consortium is GRANTED.

1. Motion for Summary Adjudication as to Medical Malpractice/Wrongful Death; Lack of Informed Consent, Medical Battery, Fiduciary Duty; Negligent Hiring; and, Loss of Consortium is GRANTED.

2. As to Elder Abuse, Punitive Damages and Willful Misconduct, the Motion is GRANTED as to Cedars-Sinai but the Court has questions as to Dr.Li.

[1]Weiss v. Chevron, USA, Inc. (1988) 204 Cal.App.3d 1094, authorizes trial courts to consider additional evidence to rule upon a motion of summary judgment, if notice is provided and an opportunity to respond is afforded.

[2]At the time, this facility had no connection to Defendants. Providence Health System did not become affiliated with Cedars-Sinai Medical Center until March 12, 2019. (Exhibit VVVV, Dec. Pamela Hamilton.)

[3]Dr. Lieu’s expertise and basis of his opinion are further set forth in his 12 paragraph declaration and deposition in Exhibits LLLL – UUUU.

[4]Dr. Bristow’s expertise and basis of his opinion are further are set forth in his 91 paragraph declaration and deposition in Exhibits AAAA-OOOO.)..

[5]Contrary to Plaintiffs’ contentions, these opinions are detailed, from qualified experts, who explain the factual basis of their conclusions. Moreover, the Court granted Plaintiffs a significant continuance in order for Plaintiff to further challenge their opinions by deposing Dr. Bristow and Dr. Lieu.

[6]“But even if a jury rejected [the expert's] opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 289). Thus, even if the opinions of both Dr. Bristow and Dr. Lieu were rejected the court, Plaintiffs still must establish the standard of care for doctors, such as Dr. Li, with an expert.

[7]Plaintiffs’ contention that the Defendants fail to negate all theories of liability is unavailing. To be sure, even assuming Dr. Li negligently delayed surgical intervention causing the tumor to rupture or was negligent in all the subsequent treatment, Plaintiff was still required to establish the surgical delay and negligent treatment was a substantial factor in bringing about Benhahm’s, i.e., Benham had a greater than 50 % chance of survival prior to commencing treatment with Dr. Li.