On 03/02/2016 MICHAEL BERLIN M D filed a Personal Injury - Medical Malpractice lawsuit against PATRICK JOHNSON M D. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BERLIN MICHAEL S. DR.
CEDARS-SINAI MEDICAL CENTER
DOES 1 TO 10
JOHNSON PATRICK M.D.
JOHNSON PATRICK M.D. MSJ GRANTED
THE SPINE CENTER A MEDICAL GROUP INC.
FRASER WATSON & CROUTCH
MCCURDY & LEIBL LLP
MOSELY KATHRYN S.M. ESQ.
FRASER STEPHEN CLARK
FRASER STEPHEN C. ESQ.
1/4/2018: CEDARS-SINAI MEDICAL CENTER'S SEPARATE STATEMENT OF DISPUTED MATTERS AND CATEGORIES
1/18/2018: ORDER GRANTING ATIORNEY'S MOTION TO BE RELIEVED AS COUNSEL?CIVIL
2/6/2018: NOTICE OF FILING OF NOTICE OF APPEAL
6/4/2018: THE SPINE CENTER'S REPLY TO BERLIN'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
6/8/2018: DECLARATION OF CRAIG R. DONAHUE IN COMPLIANCE WITH LASC RULE 3.57 PERTAINING TO DEFENDANT ETC.
6/13/2018: Minute Order
6/15/2016: Minute Order
8/19/2016: NOTICE OF RULING
8/22/2016: FIRST AMENDED COMPLAINT FOR: 1. PROFESSIONAL NEGLIGENCE REQUEST FOR TRIAL BY JURY
8/31/2016: NOTICE OF TAKING MOTIONS TO COMPEL SET FOR HEARING ON SEPTEMBER 1, 2016 OFF-CALENDAR
9/22/2017: Minute Order
10/17/2017: DEFENDANT?S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
11/3/2017: PLAINTIFF'S NOTICE OF LODGING DOCUMENTARY EVIDENCE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT J. PATRICK JOHNSON'S MOTION FOR SUMMARY JUDGMENT.
11/3/2017: PLAINTIFF'S NOTICE OF NON-OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT, THE SPINE CENTER, A MEDICAL GROUP, INC. , ONLY.
11/9/2017: DEFENDANT PATRICK JOHNSON M.D.?S REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES RESERVATION ID: 160616136780
11/13/2017: PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO EVIDENCE CITED IN PLAINITFF'S PAPERS SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; DECLARATION OF PETER K. LEVINE, ESQ.
at 08:31 AM in Department 78; Hearing on Motion to Tax Costs - HeldRead MoreRead Less
Minute Order ( (Hearing on Motion to Tax Costs)); Filed by ClerkRead MoreRead Less
Notice of Ruling; Filed by Patrick, M.D. (MSJ GRANTED) Johnson (Defendant); THE SPINE CENTER, A MEDICAL GROUP INC. (Defendant)Read MoreRead Less
Order (Ruling Re: Plaintiff Michael Berlin's Motion to Tax Costs); Filed by ClerkRead MoreRead Less
Association of Attorney (Notice); Filed by Michael S. Dr. Berlin (Plaintiff)Read MoreRead Less
Reply (in Further Support of his Motion to Strike Costs, or in the Alternative, to tax costs; Reply Memorandum of Points and Authorities); Filed by Michael S. Dr. Berlin (Plaintiff)Read MoreRead Less
Defendant Spine Center's Opposition to Motion to Tax Costs; Memorandum of Points and Authorities; Declaration of Daniel K. Dik and Exhibits; Filed by THE SPINE CENTER, A MEDICAL GROUP INC. (Defendant)Read MoreRead Less
Notice of Designation of Record; Filed by Michael S. Dr. Berlin (Plaintiff)Read MoreRead Less
Notice; Filed by ClerkRead MoreRead Less
NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)Read MoreRead Less
Receipt; Filed by Patrick, M.D. (MSJ GRANTED) Johnson (Defendant)Read MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
ANSWER OF DEFENDANT PATRICK JOHNSON, M.D., TO PLAINTIFF'S UNVERIFIED COMPLAINTRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
NOTICE OF POSTING JURY FEESRead MoreRead Less
DECLARATION BY TRIAL ATTORNEY (FORMERLY PURSUANT TO SECTION 9 OF THE COURT RULES OF COURT JUDICIAL ADMINISTRATION STANDARDS]Read MoreRead Less
Declaration; Filed by Cedars-Sinai Medical Center (DISMISSED) (Defendant)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Michael S. Dr. Berlin (Plaintiff)Read MoreRead Less
Case Number: BC612484 Hearing Date: September 11, 2020 Dept: 78
WIT GROUP, LLC., et al.;
AND RELATED CROSS-ACTION
September 11, 2020
[TENTATIVE] RULING RE:
specially appearing CROSS-defendant BIANCA SHAH’S motion to quash FOR LACK OF JURISDICTION
specially appearing CROSS-defendant SHREDZ SUPPLEMENTS, LLC’S motion to quash FOR LACK OF PERSONAL JURISDICTION
Specially Appearing Cross-Defendant Bianca Shah’s Motion to Quash for Lack of Personal Jurisdiction is GRANTED.
Specially Appearing Cross-Defendant Shredz Supplements, LLC’s Motion to Quash for Lack of Personal Jurisdiction is DENIED.
This is an action for breach of contract. The Complaint alleges as follows. Plaintiff Flavorgod, LLC (“Flavorgod”) manufactures and sells food seasonings/spices around the world. (Compl. ¶ 10.) On November 13, 2017, Flavorgod entered into a written Services Agreement (“Services Agreement”) with Defendant WIT Group, LLC (“WIT”) to provide fulfillment services such as storage, packing, and shipping of Plaintiff’s goods. (Compl. ¶¶ 11-12.) Under the Agreement, WIT agreed to pay a $2m premium fee, and Plaintiff granted WIT the sole and exclusive right to purchase its products from Plaintiff and/or its manufacturer, Pacific Spice Co. (“Pacific”). Plaintiff agreed it could not engage in any wholesale sales of the products during the term of the agreement.. (Compl. ¶¶ 13-14.). Plaintiff also agreed that WIT could keep 50% of the gross profits it received on wholesale transactions. (Coml. ¶ 17.) Wit breached the Service Agreement by not paying the $275,000 installment of the $2m premium fee due on September 28, 2018. (Compl. ¶ 26.)
Flavorgod filed the Complaint on October 2, 2018, alleging five causes of action:
Breach of contract
Breach of contract – anticipatory repudiation
Breach of implied covenant of good faith and fair dealing
Interference with economic advantage
On October 15, 2018, WIT filed a Cross-Complaint (“XC”) alleging eight causes of action:
Breach of contract
Breach of covenant of good faith and fair dealing
Fraud and deceit
Intentional interference with contractual relations
B&P Code § 17200
On January 8, 2019, WIT filed an Answer.
On January 22, 2019, Flavorgod filed an Answer to the XC.
On May 28, 2020, WIT filed Proofs of Service of the XC as to Bianca Shah (“Shah”) and Shredz (“Shredz”).
On June 17, 2020, Shredz filed the instant Motion to Quash.
On June 18, 2020, Shah filed the instant Motion to Quash.
On August 28, 2020, WIT filed Oppositions to each Motion.
On September 3, 2020, Shredz and Shah each filed a Reply.
MOTION TO QUASH SERVICE OF SUMMONS
Code of Civil Procedure section 418.10, subd. (a)(1) states: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes . . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”
Personal service requires the personal delivery of a copy of the summons and of the complaint to the person to be served. (Code Civ. Proc., § 415.10.)
Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)
Defendants Shah and Shredz each contend that they have not been properly served with the Cross-Complaint and summons in this action. (Motions at pp. 2-3.)
The facts regarding service of Shah in this case are as follows. On May 22, 2020, a registered process server declares that he served Shah by personal service at 2140 Davie Avenue, Commerce, CA. (Shah Motion, Exh. 1.) In the instant Motion, Shah argues that she was not actually personally served and that the process server instead left the documents with Brendan Shah (“Brendan”) when Brendan was simultaneously served on behalf of Cross-Defendant “International Tea.” (Shah Motion at p. 3.) She contends that Brendan was not authorized to accept service on her behalf but the process server left the summons and XC for her at International Tea’s office. (Shah Motion at p. 5.) In support of the Motion, Brendan declares that on May 22, 2020, he was served by the process server as the registered agent of International Tea, Inc. and at the same time, the process server tried to serve him with Shah’s summons and XC. (B. Shah Decl., ¶ 4.) He declares that he told the process server that he could not accept service for Shah for the process server left the documents regardless. (B. Shah Decl. ¶ 4.)
“When a California defendant moves to quash service for lack of personal jurisdiction, the burden is on the plaintiff to establish jurisdiction by a preponderance of the evidence.” (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 343.) In Opposition, WIT argues that because service was made by a process server, there is a presumption that service was made as indicated on the Proof of Service. (Oppo. at p. 5.) WIT further argues that the process server attempted service on Shah several times since the filing of this Motion, but Shah has been unavailable each time. (Oppo. at p. 6.)
WIT is correct that there is a statutory presumption in favor of proofs of service averring personal service on a defendant. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390) However, Shah Shah rebuts that presumption by supplying a declaration by Brendan that he was advised the process server that he did not have authority to accept service on Shah’s behalf but the process server left the documents with him nevertheless. (B. Shah Decl., ¶ 4.)
WIT, in Opposition, does not argue or present any evidence, such as a declaration by the process server, that Shah was personally served instead of Brendan.
Accordingly, Shah’s Motion to Quash is GRANTED.
The facts regarding service of Shredz are as follows. On May 8, 2020, a process server served Defendant Shredz Supplements, LLC (“Shredz”) by mail to an address outside California in the state of New Jersey. (Shredz POS ¶ 5.) The Proof of Service includes a return receipt that was signed by “TC C19,”, printed name of “A. LAL”, delivered on May 16, 2020 to “Shredz, Arvin Lal.” (Shredz POS.)
Shredz argues that Arvin Lal (“Lal”) did not sign the return receipt and there is no one other than Lal authorized to accept service for Shredz. (Shredz Mot. At p. 6.) Shredz further contends that the mailing was improper because it was addressed to “Shredz Arvin Lal” instead of “Agent for Service of Process for Shredz.” (Shredz Mot. At pp. 6-7.) Shredz offers as evidence the declaration of Lal who declares that he did not sign the return receipt, that the signature is not his handwriting, and that he did not write “A. Lal.” for the name. (Lal Decl. ¶ 4.)
In Opposition, WIT contends that the signed return receipt creates a presumption of proper service. (Oppo. at p. 5.) WIT argues that Lal’s declaration does not state that Lal did not receive the summons and complaint, only that he did not sign the receipt. (Oppo. at p. 5.) Further, they contend that Lal’s declaration supports the fact that WIT “substantially complied” with the service of process requirements because the summons and complaint were sent by certified mail, return receipt requested, directed to Lal, and received a signed return receipt. (Oppo. at p. 5.)
To create a rebuttable presumption as to the validity of the proof of service: “Section 417.20 requires that “if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served....” (§ 417.20, subd. (a).) To do so, it must show that the summons was mailed to a person or persons who may be served, and “the name, title or representative capacity, if any, ... of such person or persons....” (Judicial Council Report, comment to section 417.20, p. 59.)” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1442, as modified on denial of reh'g (May 26, 1994).”
Here, the Proof of Service says that it was mailed to “Shredz, Arvin Lal, [Address].” (Shredz POS.) The proof of service substantially complies with the statutory requirements because it was addressed to the correct company and Arvin Lal is the correct agent to accept service. Further, the Court agrees with WIT that Lal’s evidence does not support a claim that he was not served. Lal’s declaration does not state or imply that service was not received, nor that he was unauthorized to accept service. There is no specific requirement that the service packaged must have been addressed to “Agent for Service of Process of Shredz” instead of “Arvin Lal,” as argued by Shredz. Thus, there is a presumption in this case that the proof of service is valid.
Lastly, Code of Civil Procedure section 417.20 states: “proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence[.]” (Civ. Proc. § 417.20(a), emphasis added.) Here, Shredz does not argue or present evidence that Lal was not actually served with the summons and cross-complaint.
Accordingly, Shredz’ Motion to Quash is DENIED.
DATED: September 11, 2020
Hon. Robert S. Draper
Judge of the Superior Court
Case Number: BC612484 Hearing Date: September 10, 2020 Dept: 78
MICHAEL BERLIN, M.D.;
PATRICK JOHNSON, M.D., et al.;
September 10, 2020
[TENTATIVE] RULING RE:
defendant THE SPINE CENTER A MEDICAL GROUP, INC.’S MOTION FOR SUMMARY JUDGMENT
Defendant The Spine Center A Medical Group, Inc.’s Motion for Summary Judgment is GRANTED.
This is a medical negligence case. The First Amended Complaint (“FAC”) alleges as follows. Plaintiff Michael Berlin, M.D. (“Berlin”) alleges that defendants Patrick Johnson, M.D. (“Johnson”) and Cedars Sinai Medical Center (“CSMC”) fell below the standard of care during a spinal surgery performed on Berlin on April 8, 2014. (FAC ¶¶ 10–13.) Berlin alleges that he did not discover the facts underlying this cause of action until December 9, 2014. (FAC ¶¶ 10-13.)
Dr. Berlin filed his Complaint on March 2, 2016, alleging a single cause of action for professional negligence.
On July 18, 2016, this case was transferred from a Personal Injury court to Department 78.
On August 16, 2016, this Court sustained CSMC’s Demurrer to Berlin’s Complaint with leave to amend.
On August 22, 2016, Berlin filed the FAC against Johnson and CSMC, alleging a single cause of action for professional negligence.
On September 16, 2016, Berlin dismissed CSMC from the case.
On August 21, 2017, Berlin filed a Doe Amended, identifying Doe No. 1 as “The Spine Center A Medical Group, Inc.” (the “Spine Center”).
On October 17, 2017, the Spine Center filed an MSJ contending that the Spine Center “was made a party to this action by way of an unsupportable and untimely Doe Amendment […] which does not relate back to the filing of the original complaint.”
On October 20, 2017, Johnson filed an MSJ, contending that the FAC failed to present any triable issues of material fact against Johnson “in that defendant did not fall below the applicable standard of care, the conduct of defendant was not otherwise actionable and the conduct of defendant was not a cause or significant contributing factor to plaintiff’s claimed injuries and damages.”
On November 30, 2017, the Court granted Johnson’s MSJ. On December 7, 2017, the Court entered judgment in favor of Johnson against Berlin.
On June 11, 2017, the Court granted the Spine Center’s MSJ and entered judgment in favor of Spine Center against Berlin.
On February 5, 2018, Berlin appealed the December 7, 2017 judgment in favor of Johnson after the Court granted Johnson’s MSJ.
On August 9, 2018, Berlin appealed: (1) the judgment entered June 11, 2018 as to the Spine Center’s MSJ; and (2) a portion of the June 13, 2018 minute order denying plaintiff’s motion to tax item 16 of the memorandum of costs filed by Johnson.
On December 16, 2019, this Court received a remittitur from the Courts of Appeal. The COA held as follows: affirming the trial court’s decision because the declarations submitted by Berlin in Opposition to the MSJ failed to “establish a triable issue of material fact on the standard of care and causation” and Berlin’s evidentiary objections were waived on appeal because they were not made at the MSJ hearing.
On February 14, 2020, this Court received a remittitur from the Courts of Appeal. The COA held as follows: (1) held that the trial court abused its discretion in approving item 16 of Johnson’s memorandum of costs; and (2) reversed the trial court’s granting of the Spine Center’s MSJ “because plaintiff’s declaration, submitted in opposition to the motion for summary judgment, created a dispute of material fact concerning his knowledge of the existence of Spine Center at the time he filed his original complaint.”
On April 23, 2020, Spine Center filed the instant MSJ.
On August 27, 2020, Berlin filed an Opposition.
On September 3, 2020, Spine Center filed a Reply.
REQUESTS FOR JUDICIAL NOTICE
The court may take judicial notice of “(c) official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. and “(g) [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)
Spine Center requests judicial notice of various Articles of Incorporation and other documents filed with the Secretary of State, the Complaint/FAC/Answer filed in this action, judgments in this action, and the opinion and remittitur from the Courts of Appeal as to this action. The Court GRANTS these requests.
Plaintiff objects to various evidence submitted by the Spine Center in support of its Motion. The Court SUSTAINS Objection No. 1 and OVERRULES the remainder.
MOTION FOR SUMMARY JUDGMENT
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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.)
Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Further, absent compliance with Code of Civil Procedure §437c(t). “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(f)(1).)
Here, Spine Center moves for summary judgment on the single cause of action – Negligence.
“The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach was the proximate or legal cause of the resulting injury.” [Citation.]” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, emphasis in original.)
In medical malpractice cases, expert testimony is required to prove or disprove compliance with the standard of care. (See Landeros v. Flood (1976) 17 Cal.3d 399, 410; Garibay, supra, 161 Cal.App.4th at p. 741.) On a summary judgment motion, expert testimony may be supplied through expert declarations, and summary judgment is proper if plaintiff fails to submit any opposing expert testimony. (See Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800; Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.) Expert declarations may be based on hospital and medical records if they are properly authenticated. (Garibay, supra, 161 Cal.App.4th at pp. 742–43.) However, “an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)
Collateral Estoppel/Res Judicata
Spine Center argues that “The issue of J. Patrick Johnson, M.D.’s compliance with the standard of care was fully litigated in this case, with expert testimony presented [Taylor Declaration], upon which this Court found that J. Patrick Johnson, M.D. complied with the standard of care. That finding has been affirmed by the Court of Appeal[.]” (Motion at p. 4.) Spine Center contends that “Because liability of The Spine Center A Medical Group, Inc. could only be based on conduct of its employees” the Court’s finding as to Johnson’s compliance with the standard of care “precludes any liability” by the Spine Center. (Motion at p. 4.)
“Collateral estoppel is an aspect of res judicata.” (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 39, as modified (Apr. 29, 2016).) Res judicata “precludes parties or their privies from relitigating a cause of action[.]” (Id.) Under collateral estoppel, “an issue necessarily decided in prior litigation may be conclusively determined as against the parties or their privies in a subsequent lawsuit on a different cause of action.” (Id.)
“Like res judicata, collateral estoppel requires that the person or entity asserting it was a party to the previous action or in privity with the party, among other requirements. ‘Collateral estoppel applies when (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue necessarily decided in the prior adjudication is identical to the one that is sought to be relitigated.’” (Id. citing Roos v. Red (2005) 130 Cal.App.4th 870, 879-880.)
However, the elements of both res judicata and collateral estoppel require a court decision to have been made in a “prior action.” The rules expressly state that these principles apply to prevent a party “from relitigating in a second proceeding matters litigated and determined in a prior proceeding.” (Younan v. Caruso (1996) 51 Cal.App.4th 401, 406.) “Only issues actually litigated in the first action may be precluded by collateral estoppel.” (Id. at 407.)
Spine Center does not, in its Motion nor its Reply, provide any legal authority for applying res judicata or collateral estoppel as to different defendants within a single, current case.
The Court’s decision as to the Motion for Summary Judgment against Johnson was made in this current action not a prior action. Accordingly, collateral estoppel and res judicata do not apply.
“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)
However, “The employer's liability is wholly derived from the liability of the employee. The employer cannot be held vicariously liable unless the employee is found responsible.” (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423, as modified on denial of reh'g (Feb. 11, 2004).) “Because the vicarious liability of the employer is wholly dependent upon or derived from the liability of the employee, any substantive defense that is available to the employee inures to the benefit of the employer.” (Id.) Specifically, “There can be no vicarious liability in a medical malpractice action without the underlying liability of the medical practitioner.” (Id. at 1426.)
In this case, the FAC bases all liability entirely on Johnson’s acts or omissions as the surgeon in Berlin’s surgery. This Court entered judgment for Johnson against Berlin after granting Johnson’s MSJ on the grounds that Berlin did not establish a dispute of material fact as to Johnson’s alleged negligence. Berlin challenged the judgment through appeal, and the Court of Appeal affirmed the judgment. “The summary judgment on the complaint is a judgment on the merits (citations) and it has become final.” (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 629.) Under the law of the case theory, “the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1505.) Thus, because judgment was entered in favor of Johnson, and the Court of Appeal affirmed the granting of Johnson’s Motion for Summary Judgment, Spine Center cannot be liable as a matter of law. (See, Korens v. R. W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1062, reh'g denied and opinion modified (Aug. 28, 1989)
In Opposition, Berlin raises a new argument that there is an issue of fact as to whether Dr. Johnson or “Dr. Kim in the presence of Dr. Johnson” performed Berlin’s surgery. (Oppo. at p. 4.) This argument is without merit.
The FAC alleges that Berlin performed the surgery: “Dr. Berlin consented to such procedure, and on or about April 08, 2014, Dr. Berlin had this surgery performed by Dr. Johnson.” (FAC ¶ 9.) “Summary judgment cannot be granted on a ground not raised by the pleadings. […] Conversely, summary judgment cannot be denied on a ground not raised by the pleadings.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) “If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend.” (Id. at 1664.) Here, the FAC does not mention Dr. Kim a single time. Thus, Plaintiff may not raise an argument in opposition to this MSJ that was not raised in the pleadings.
Considered from a different perspective, Spine Center established a prima facie case that it could not be held vicariously liable for the acts of Johnson which were alleged to be negligent. While Berlin alleges in his declaration that Kim participated in the operation, even in the declaration there is no allegation Kim was negligent. Simply adding a new name does not rebut the prima facie case established by Spine Center.
Therefore, because judgment was entered in favor of Johnson, Johnson was not found liable for the alleged negligence and consequently the Spine Center may not be found liable.
Accordingly, Spine Center’s Motion for Summary Judgment is GRANTED.
Dated: September 10, 2020
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