Judge William A. Crowfoot, Case 20STCV30212 2023-05-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 20STCV30212, Date: 2023-05-16 Tentative Ruling

On August 10, 2020, plaintiff Cindy Ortiz-Guerra (“Plaintiff”) filed this action for medical negligence, negligence, premises liability, and negligent infliction of emotional distress against defendants The Arcadia Spine Center, Clarizio Chiropractic, Inc., Dr. Winston Shi (“Shi”), and Xu Shi Acupuncture (“Xu Shi”). Plaintiff filed the operative Second Amended Complaint on August 16, 2021 which removed the claim for negligent infliction of emotional distress, added claims for medical battery, false imprisonment, negligent supervision, hiring, and/or retention, and intentional infliction of emotional distress, and named Doe Front Desk and Doe Office Manager as additional defendants.

On December 5, 2022, the Honorable Colin P. Leis granted Shi and Xu Shi (collectively, “Defendants”) motion for summary adjudication in part. The motion was granted as to Plaintiff’s causes of action for false imprisonment and intentional infliction of emotional distress on the grounds that there was no evidence that Shi intended to imprison Plaintiff or cause her extreme emotional distress; the motion was denied as to the medical battery claim because a triable issue of fact remained as to the scope of Plaintiff’s consent.

The causes of action remaining against Defendants after the previous motion for summary adjudication are: medical negligence, premises liability, and negligent hiring, supervision, and retention. On February 8, 2023, Defendants filed this motion for summary judgment on the grounds that Plaintiff cannot establish the element of causation for any of her alleged injuries within a reasonable medical probability.

In reviewing a motion for summary judgment, 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.) “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“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).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Plaintiff alleges that on August 13, 2019, she was “lawfully on the premises of Defendants’ medical facility for the purpose of receiving a thirty minute acupuncture treatment advertised on Groupon as a relaxation procedure.” (SAC, ¶ 32.) Shi began the acupuncture treatment and inserted needles in various regions of her body. (Ibid.) He instructed her to remain lying down and not to move while the needles were in her body. (Ibid.) He then told her he would return in approximately 20 to 30 minutes. (Ibid.) “After remaining still and supine for what was apparent to be an abnormal and extended period of time to Plaintiff [sic] became concerned.” (Ibid.) Plaintiff later discovered that she had been left in the closed room with needles inserted into her body for more than 2.5 hours. (Ibid.) Although she tried to call the front desk from her cell phone, no one answer her calls and she was “forced to stand up with acupuncture needles throughout her body and seek help.” (Ibid.) Once Plaintiff left the treatment room, the front desk and office manager were surprised to see that she was still there. (SAC, ¶ 33.) Plaintiff was told that Shi had left the office after advising the front desk that there were no patients remaining in the building. (Ibid.)

Plaintiff alleges that she sustained “severe and extensive injuries and damages due to being left unattended for an extensive period of time with acupuncture needles inserted at various depths and regions of her body” and suffered from unwanted touching and physical harm. (See e.g., SAC, ¶¶ 54, 60, 67.) She also alleges “physical, mental and emotional pain, suffering, shock, emotional-distress [sic], physical manifestations of emotional-distress, embarrassment, loss of self-esteem, disgrace, humiliation and loss of enjoyment of life, worry and anxiety.” (See, e.g., SAC, ¶¶ 86, 96, 115.)

Plaintiff’s remaining causes of action are all based in negligence and require that Plaintiff establish the element of causation. (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) A defendant’s negligence is the actual cause of the plaintiff’s injury if it is a substantial factor in bringing about the harm. (See Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53.) An essential element of negligence and premises liability claims are that “a defendant’s alleged misconduct was the cause in fact of the plaintiff’s damage.” (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102-03; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (stating that the elements for premises liability are the same as those for negligence).) “In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant’s breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.) “‘If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.’” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 (quoting Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861).)

Here, Defendants argue that there are no triable issues of material fact demonstrating that any act or omission caused or contributed to Plaintiff’s injuries. Defendants rely on the opinion of Kevin P. McNamee, D.C., L.Ac. (“McNamee”), an acupuncturist and chiropractor, who declares that he has reviewed the Second Amended Complaint and Plaintiff’s medical records from Defendants, Jonathan Frank, M.D., as well as the deposition transcripts of Shi and Plaintiff. (McNamee Decl., ¶¶ 2-4.) McNamee declares that it is his professional opinion, based upon a reasonable degree of medical probability, that the fact that the needles were left in longer than anticipated did not cause harm to Plaintiff because there is no set time limit for the duration that the acupuncture needles should be left in a patient’s body. (McNamee Decl., ¶¶ 9-10.) McNamee further states that he is aware that Plaintiff had surgery on her left elbow for left elbow cubital tunnel syndrome and left elbow subluxating ulnar nerve, and that this condition had nothing to do with the acupuncture treatment provided by Shi because they are not the types of conditions that would be caused by acupuncture needles under any circumstances. (McNamee Decl., ¶¶ 11-12.) He also states that there is no evidence that any acupuncture needles were placed in the vicinity of Plaintiff’s left elbow. (Ibid.)

Defendants have met their moving burden to present a prima facie case showing that Plaintiff cannot establish the element of causation which is central to her negligence-based claims. The burden thus shifts to Plaintiff to raise a triable issue of fact. However, Plaintiff did not file an opposition brief. Therefore, Plaintiff did not meet her burden and accordingly, Defendants’ motion for summary judgment is GRANTED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.