Tentative Rulings for Department 501

Tentative Rulings for May 13, 2021 Department 501

There are no tentative rulings for the following cases. The hearing will go forward on these matters. If a person is under a court order to appear, he/she must do so. Otherwise, parties should appear unless they have notified the court that they will submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

Tovar v. Olive/Broadway Enterprises, Inc., Case No. 20CECG00579. The hearing will not be on the merits of the discovery motion pending before the court. Rather, the hearing will be on the subject of the appointment of a discovery referee – either by agreement of the parties or on the court’s own motion. (CCP §§638, 639.) The parties must attend the hearing and be fully prepared to discuss that eventuality and how to implement it.

The court has continued the following cases. The deadlines for opposition and reply papers will remain the same as for the original hearing date.

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Tentative Rulings for Department 501

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(24) Tentative Ruling

Re: Lima v. Renna Superior Court Case No. 18CECG00918

Hearing Date: May 13, 2021 (Dept. 501)

Motion: by Defendant Andrew Young for Summary Judgment or, In the Alternative, Summary Adjudication

Tentative Ruling:

To deny the motion in its entirety.

Explanation:

Plaintiff’s First Amended Complaint states two causes of action against moving defendant: 1) negligence and 2) intentional tort (i.e., battery). Defendant Young moves for summary judgment/adjudication as to both based on his argument that he did not take part in the fight in which plaintiff alleges he was injured, but rather he simply observed the fight as he was leaving the bar at closing time, and then he continued walking home.

Each cause of action is premised on the same facts: that defendants, including defendant Young, “physically attacked and struck Plaintiff in the face with their fist, feet and/or objects. The actions by Defendants, and each of them, caused Plaintiff to suffer personal injuries including but not limited to, great bodily injury and emotional injuries.”

Besides a request for judicial notice of the First Amended Complaint, defendant’s evidence consists solely of his own declaration. In addition to stating he was not involved in the fight, he states he was walking home when he was stopped and detained by a police officer. He states, on “information and belief,” that he was detained in order to have a witness to the fight “observe” him (which apparently means to see if the witness could identify defendant). He states that he “believes” the officer then drove him home. The court disregards these statements made on information and belief, since an affidavit based on information and belief is hearsay and must be disregarded. (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204 [citing cases]; Gutierrez v. Superior Court, City and County of San Francisco (1966) 243 Cal.App.2d 710, 725; Pelegrinelli v. McCloud River Lumber Co. (1905) 1 Cal.App. 593, 595; Brown v. Superior Court (1987) 189 Cal.App.3d 260, 265.) Defendant states he was not arrested, which plaintiff does not dispute.

Sometime later that morning, defendant Young realized he had left his debit card at the bar, and he returned to retrieve it. He states that someone at the bar asked him to write a note to plaintiff on a post-it note, and he complied since “it seemed like I would not get my debit card back if I did not write the note. He does not indicate what this note said (and nothing about this note is mentioned in the complaint), but simply states that the note “was not a statement of fault.” The court finds that, on balance, the fact 3 regarding the note is immaterial to the ruling on this motion. Plaintiff does not dispute that defendant wrote the note after being asked to do so, but Fact 8 on the Separate Statement says nothing, one way or another, about the language of the note being, or not being, a “statement of fault.” Moreover, even if the court found that he was pressured to write the note, and that this mitigates against finding the note as an admission of participating in the fight, that does not provide evidence that he did not participate in the fight. A fact is only material on summary judgment if it is in some way essential to the judgment, i.e., it could change the outcome of the motion. (See Cal. Rules of Court, rule 1350(a)(2).) Here, it could be true that defendant Young was forced to write a note (whether exculpatory or inculpatory) in order to get his debit card returned and that he participated in the fight. Based on the fact that plaintiff did not rely on this note in either the complaint’s allegations or in opposing this motion, it does not appear he is relying on it to establish defendant’s liability. The note is not material on this motion.

The court denies summary adjudication of the intentional tort cause of action. While the First Amended Complaint does not expressly label it as such, this is a cause of action for battery, which is an “‘intentional, unconsented, and harmful [or offensive] contact by one person with another.’” (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 46, italics and omitted, quoting BAJI No. 7.50 (1992 rev.).) While defendant met his burden of production on the motion with his declaration stating he did not take part in the fight, plaintiff raised a triable issue of material fact by producing evidence of two witnesses – Valerie Richardson and defendant Christopher Renna – stating that they saw defendant Young take part in it.

The court overrules each of defendant’s evidentiary objections to the declaration of Valerie Richardson. In the first place, they are based on the introduction of new evidence presented on reply, namely the police report attached to the evidentiary objection. The moving party may not generally rely on evidence presented for the first time with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) More important, the police report cannot be admitted as evidence because it was not properly authenticated by the custodian of records so as to qualify under the business records exception to the hearsay rule. (Evid. Code, § 1280; Jacobson v. Gourley (2000) 83 Cal.App.4th 1331, 1333.) Further, even if it had been properly authenticated, only the statements made in the report on the officer’s personal knowledge, which were made “at or near the time” of the event, are admissible. Statements of eyewitnesses contained in the report are not admissible for their truth unless they are admissible under a separate exception to the hearsay rule (e.g., party admission). (Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn 6.)

Finally, the objections are overruled because defendant’s arguments therein are aimed more at the credibility of Ms. Richardson’s declaration, rather than its admissibility. On summary judgment, the court accepts each declaration as true in determining whether there are triable issues of fact, and cannot resolve questions of credibility. (Code Civ. Proc., § 437c, subd. (e); AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Ms. Richardson’s declaration states that she saw defendants Young, Renna and Freitas punching and kicking plaintiff while he was on the ground. This is sufficient to establish her personal knowledge as to her testimony, and creates a triable issue of material fact. Further, defendant Renna testified at his deposition that he told the 4 police officer, after he was Mirandized, that Freitas and Young were involved in the assault and that Young “either pushed [plaintiff] or punched him.”

The evidence before the court is sufficient to raise a triable issue of material fact as to whether defendant Young participated in the “intentional, unconsented, and harmful [or offensive] contact” on plaintiff. The fact that plaintiff’s argument did not go into the intentional tort cause of action directly, but simply incorporated by reference the argument made as to the negligence count, does not dictate granting of the motion. The focus is on the evidence plaintiff presented, which was sufficient.

The court also denies summary adjudication of the negligence cause of action. The main thrust of defendant’s argument is that the cause of action cannot be established as to any element based on the evidence defendant produced to the effect that he took no part in the alleged beating. However, as established above, a triable issue of material fact was raised on that score. Defendant made a secondary argument that, essentially, the cause of action was defective because the facts outlined an intentional act and not a negligent one. Defendant argues, “Nothing about Plaintiff’s allegations is negligent, nor does it leave room for negligence.”

However, there can be no doubt that physically attacking another by striking him with fists, feet and objects would breach the standard duty of care one person owes another, and would also have a foreseeable risk of causing harm. Defendant cited no authority for the proposition that a negligence claim necessarily does not lie where an intentional tort is alleged. He cited to Bartosh v. Banning (1967) 251 Cal.App.2d 378 for the proposition that in the perpetration of the intentional torts of assault and battery “negligence is not involved.” (Ibid at p. 385.) However, in context, this comment was considering defendant’s argument and plea that the victim had been guilty of contributory negligence. (Ibid.) All cases commenting on this point from Bartosh v. Banning, including one opinion from the California Supreme Court, acknowledge that it is intended to express a limitation on the doctrine of contributory negligence: where the plaintiff allege an intentional tort (e.g., “willful misconduct” or “an intentional wrong”), the contributory negligence defense is unavailable to the defendant. (See, e.g., B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 14.) That point is not in issue here, so the quote from Bartosh v. Banning does not carry defendant’s point.

Since summary adjudication is denied for each of the causes of action asserted against moving defendant, summary judgment is also denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling Issued By: DTT on 4/29/2021 . (Judge’s initials) (Date)

(27) Tentative Ruling

Re: Velandria v. Adventist Health Hanford, et al. Superior Court Case No. 19CECG02977

Hearing Date: May 13, 2021 (Dept. 501)

Motion: by Defendants Dr. Harold Boulton, M.D., and Adventist Health - Hanford for Summary Judgment or, in the Alternative, Summary Adjudication

Tentative Rulings:

To deny the alternative motions. To overrule all objections.

Explanation:

Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three-prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determining whether the opposition demonstrates the existence of a triable issue of material fact. (Lease & Rental Management Corp. v. Arrowhead Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.)

In addition “the moving parties' affidavits are to be strictly construed and in case of doubt the motion should be denied. And counteraffidavits disclosing evidence or “inferences reasonably deducible from such evidence” of a triable issue of fact require the denial of the motion.” (Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113.)

Expert Declarations

“Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) “ ‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he 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.)

“The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “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 [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” [Citations.]’ [Citation.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983–984; see also Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Defendants present the declarations of three expert witnesses, Dr. Hugh West, Dr. Roy Antelyes and Dr. Michael Van Scoy-Mosher. Plaintiff presents the declaration of expert witness Dr. Patricia Piggee. Although both defendants object to Dr. Piggee’s supplemental declaration, both declarations can nevertheless be considered in plaintiff’s opposition since defendants have had an opportunity to file objections and the supplemental declaration cures a technical deficiency in the initial declaration. (See Cal. Rules of Court, rule 3.1300(d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Accordingly, defendants’ objections to the declaration of Dr. Piggee are overruled.

Medical Malpractice

Healthcare providers must possess and exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, 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.” [Citation.]’” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)

Duty can be established by the physician-patient relationship. Thus, “[l]iability for malpractice arises where there is a relationship of physician-patient between the plaintiff and the defendant doctor; the relationship gives rise to the duty of care.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1075; Marlene F. v. Affiliated Psychiatric Medical, Inc. (1988) 48 Cal.3d 583, 590; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [because there is no independent tort of negligent infliction of emotional distress the defendant must owe a duty to plaintiff to recover for emotional distress].)

The evidence submitted in Dr. Boulton’s motion states that plaintiff’s CT results on September 2, 2018, identified focal wall thickening suspicious for neoplasm vs colitis, a 3 x 3 cm mass, and a 3.4 cm left renal cyst. Yet, the same report also states that plaintiff was given educational materials entitled “Abdominal Pain, Unknown Cause, (Female)”. (See MSJ Appendix, pg. 67.)

Nevertheless, Dr. Bouton supports his motion for summary judgment/adjudication with the opinion of Dr. Roy Antelyes, M.D., a California emergency room physician who has been board certified in Emergency Medicine by the American Board of Emergency 7

Medicine from 1983 to the present. Dr. Antelyes has reviewed plaintiff’s medical records from Adventist Health – Hanford on September 1-2, 2018. Although he does not comment on the educational materials given to plaintiff, nor comment on what she was advised, Dr. Antelyes opines that Dr. Boulton met the standard of care in respect to his care and treatment of plaintiff and that he was not cause the or contribute to any emotional distress suffered by plaintiff. (Antelyes, Decl. ¶ 19.)

However, the educational materials given to plaintiff, entitled abdominal pain, unknown cause, implies that plaintiff was not told specifically her condition had the potential for cancer. Furthermore, plaintiff supports her opposition with the opinion of Dr. Piggee, who describes herself as an Emergency Medicine Specialist, with 28 years in the medical field. Dr. Piggee specifically comments on the educational materials given to plaintiff and plaintiff’s declaration to form the opinion that plaintiff left Adventist Health – Hanford on September 2, 2018 without any information she potentially had cancer. (Piggee, Decl. ¶ 4(c).)

In addition, plaintiff’s deposition transcript offered in support of Dr. Boulton’s motion states that he told plaintiff that “he couldn’t find anything, there was some tenderness, like I was constipated, he was sending me home with Miralax and Tramadol.” (MSJ Appendix, 5247.)

The court must view all inferences reasonably drawn from the evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) The inference raised in Dr. Boulton’s evidence is that plaintiff was not informed of the September 2, 2018, CT results. In addition, plaintiff’s expert has opined that not informing plaintiff of the September 2, 2018, CT results constitutes a breach of the applicable standard of care. Plaintiff’s expert reaches this opinion by noting numerous regulations and statutes, which are offered to establish the standard of care, not – as defendants’ argue – to establish violations amounting to negligence per se. Accordingly, the evidence before the court, considered in the light most favorable to plaintiff, is insufficient to support summary adjudication of the general negligence claim.

Negligent Infliction of Emotional Distress

Where a pleader has framed their causes of action in both negligence and negligent infliction of emotional distress, the only tort with which we are concerned is negligence. Negligent infliction of emotional distress is not an independent tort. (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 875- 877.) Accordingly, “’[t]he traditional elements of duty, breach of duty, causation, and damages apply. [¶ ] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ [Citation.]” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588; see also Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1062-1063 [negligent infliction of emotional distress cause of action permissibly plead in addition to negligence cause of action].) Furthermore, “[s]erious mental distress may be found where a reasonable [person] normally constituted, would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 668, fn. 112.) Generally, these determinations are questions of fact. (Kindrich v. Long 8

Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1263.) Thus, “[a]lthough th[e] evidence [may be] arguably scant, the question of whether and to what extent the misconduct in question caused emotional distress is best left for the determination of the fact-finder.” (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1250-1251 [reversing summary judgment].)

In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, the plaintiff’s wife was erroneously told she had contracted an infectious type of syphilis and was forced to unnecessarily be subjected to various treatments for the disease, including the administration of massive doses of penicillin. Due to his wife’s erroneous diagnosis, plaintiff was tested for syphilis, which turned up negative. The plaintiff’s negative results placed great stress on his marriage such that a break up was caused and dissolution proceedings were initiated. The plaintiff then sued to recover for the emotional distress he suffered as the result of the negligent misdiagnosis.

In reviewing the trial court’s sustaining of a demurrer, the California Supreme Court held that the plaintiff had stated a cause of action for negligent infliction of emotional distress because the risk of harm to the plaintiff was reasonably foreseeable and because “jurors are best situated to determine whether and to what extent the defendant's conduct caused emotional distress, by referring to their own experience.” (Molien, supra, 27 Cal.3d at p. 930.) In essence, it is a factual determination whether the plaintiff’s alleged emotional distress is feigned or genuine. (Id. at pp. 926.)

Accordingly, “(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached.” (Burgess, supra, 2 Cal.4th 1074; see also Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 591 [mother could maintain a cause of action for negligent infliction of emotional distress where her and her son’s therapist molested her son].)

Although defendants’ expert Dr. Michael Can Scoy-Mosher opines that the delay in treatment did not cause harm, plaintiff’s complaint alleged that she suffered severe emotional distress, including anger, anxiety and depression resulting from not being advised of the significance of the September 2, 2018 CT results. Plaintiff’s declaration states that she felt forlorn, angry, depressed, and worried. (Velandria, Decl. ¶ 13.) Although defendants’ object to plaintiff’s declaration on grounds that it is inconsistent with her deposition testimony, “the question of whether and to what extent the misconduct in question caused emotional distress is best left for the determination of the fact-finder.” (Slaughter v. Legal Process & Courier Service, supra, 162 Cal.App.3d at pp. 1250-1251.) Accordingly, defendants’ objections to the plaintiff’s declaration are overruled. Furthermore, the evidence is insufficient to support summary adjudication of the negligent infliction of emotional distress claim.

Adventist Health – Hanford’s Motion for Summary Judgment/Adjudication

Whether the doctors were acting as ostensible agents of the hospital is a question of fact that cannot be resolved on summary judgment. (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 168; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 502.)

Furthermore, in the emergency room setting, where a patient is sick and in need of immediate care and does not seek out any individual physician, a distressed patient’s signing of a form acknowledging the physicians are independent contractors, does not require judgment in favor of the hospital. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453-1457 (Mejia).) Under these circumstances, the doctrine of ostensible agency serves as a mechanism to impose liability on hospitals for the negligence of independent contractor physicians. (Ibid.) Citing a clear nationwide trend, the court wrote that ostensible agency can be inferred “from the mere fact that the plaintiff sought treatment at the hospital without being informed that the doctors were independent contractors.” (Ibid.) Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the trier of fact.” (Mejia, supra, 99 Cal.App.4th at p. 1458; see also Whitlow v. Rideout Memorial Hospital (2015) 237 Cal. App. 4th 631, 641 [“Simply put, we reject the notion that a signature on an admissions form conclusively constitutes notice to a patient seeking care in an emergency room that the treating physician, whom she did not choose and did not know, is not an agent of the hospital. The trial court erred in granting summary judgment, thereby absolving the hospital of liability as a matter of law.”].)

Here, plaintiff was in severe pain when she was admitted to the emergency room. Furthermore, although Adventist Health – Hanford contends that plaintiff testified at her deposition she knew the physicians were not employed by the hospital, she also testified that she only “skimmed” the multi-paragraph paperwork she signed upon her emergency room visit. She also testified that her comprehension of the physicians’ employment status was not “even on my mind”. Accordingly, considering the evidence in the light most favorable to plaintiff, the inference raised is that her “skimming” of a multi-paragraph document while enduring severe pain may not have created sufficient comprehension of Dr. Boulton’s employment status sufficient to decide the matter as a matter of law. Consequently, the evidence is insufficient to support summary judgment/adjudication.

Tentative Ruling Issued By: DTT on 5/11/2021 . (Judge’s initials) (Date)