This case was last updated from Los Angeles County Superior Courts on 06/17/2019 at 12:32:08 (UTC).

TATIANA CARMONA VS PROVIDENCE HEALTH SYSTEM-SOUTHERN CA ETAL

Case Summary

On 08/19/2016 TATIANA CARMONA filed a Personal Injury - Medical Malpractice lawsuit against PROVIDENCE HEALTH SYSTEM-SOUTHERN CA ETAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0731

  • Filing Date:

    08/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

CARMONA TATIANA

Defendants and Respondents

CZUBIAK CATHERINE

WILEN BARRY

HILLVIEW MENTAL HEALTH CENTER INC.

SHEU YEONG AN

SOTIROPOULUS GEORGIA

KALAW GEORGE

POOLE RENEE

LEUNG JOHN STEPHEN

ROUTZAHN CHELSEA

PROVIDENCE HEALTH SYSTEM-SOUTHERN

KAISER FOUNDATION HOSPITALS

DEOL AJIT

KAISER FOUNDATION HEALTH PLAN INC.

REITER SCOTT

TEEHEE KEVIN

DABBS DANIELLE

VALLEY PRESBYTERIAN HOSPITAL

SHIH HENRY

DOES 1 THROUGH 100

21 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

RAND GARY ESQ.

Defendant Attorneys

SCHULER & BROWN LAW OFFICES OF

VIGIL CARMEN

BEACH THOMAS E.

AMES DENNIS K. ESQ.

MCKENNA ROBERT L. III. ESQ.

MCANDREWS THOMAS F. ESQ.

MCKENNA ROBERT LOWELL III

TRAPP JANET E.

LEWIS BRISBOIS BISGAARD & SMITH LLP

GONZALEZ MICHAEL D. ESQ.

GIOVANNIELLO ALEXANDER F.

CARROLL RICHARD D.

BONNE BRIDGES MUELLER O'KEEFE & NICHOL

 

Court Documents

DECLARATION OF ERIK M. BRESSLER; ETC.

8/27/2018: DECLARATION OF ERIK M. BRESSLER; ETC.

NOTICE RE: CONTINUANCE OF HEARING

8/28/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/28/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF RULING ON DEMURRER OF DEFENDANT COUNTY OF LOS ANGELES

8/28/2018: NOTICE OF RULING ON DEMURRER OF DEFENDANT COUNTY OF LOS ANGELES

NOTICE OF CONTINUANCE OF DEFENDANTS, KAISER FOUNDATION HOSPITALS AND KAISER FOUNDATION HEALTH PLAN, INC.'S MOTIONS TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES

8/31/2018: NOTICE OF CONTINUANCE OF DEFENDANTS, KAISER FOUNDATION HOSPITALS AND KAISER FOUNDATION HEALTH PLAN, INC.'S MOTIONS TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES

REPLY OF DEFENDANTS KAISER FOUNDATION HOSPITALS AND KAISER FOUNDATION HEALTH PLAN, INC., TO PLAINTIFF'S OPPOSITION TO MOTIONS TO COMPEL DISCOVERY RESPONSES

8/31/2018: REPLY OF DEFENDANTS KAISER FOUNDATION HOSPITALS AND KAISER FOUNDATION HEALTH PLAN, INC., TO PLAINTIFF'S OPPOSITION TO MOTIONS TO COMPEL DISCOVERY RESPONSES

DEFENDANT PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA DBA PROVIDENCE HOLY CROSS MEDICAL CENTER'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING PLAINTIFF TO PROVIDE RESPONSES TO DEMAND FOR DOCUM

9/10/2018: DEFENDANT PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA DBA PROVIDENCE HOLY CROSS MEDICAL CENTER'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING PLAINTIFF TO PROVIDE RESPONSES TO DEMAND FOR DOCUM

Unknown

9/20/2018: Unknown

Minute Order

9/24/2018: Minute Order

Answer

10/10/2018: Answer

Notice of Joinder

11/26/2018: Notice of Joinder

Minute Order

12/12/2018: Minute Order

Notice

1/7/2019: Notice

Opposition

1/24/2019: Opposition

Notice of Joinder

1/30/2019: Notice of Joinder

Minute Order

2/21/2019: Minute Order

Notice

3/4/2019: Notice

Notice

4/11/2019: Notice

350 More Documents Available

 

Docket Entries

  • 06/12/2019
  • Reply (to Defendant Valley Presbyterian Hospital's Opposition to Motion to Tax Costs); Filed by Tatiana Carmona (Plaintiff)

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  • 06/06/2019
  • Declaration (of Perri-Elle Cabagnot); Filed by Valley Presbyterian Hospital (Defendant)

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  • 06/06/2019
  • Opposition (to Motion to Strike); Filed by Valley Presbyterian Hospital (Defendant)

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  • 05/22/2019
  • at 08:30 AM in Department 4; Jury Trial - Not Held - Vacated by Court

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  • 05/15/2019
  • at 09:00 AM in Department 61; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 05/08/2019
  • at 10:00 AM in Department 4; Final Status Conference - Not Held - Vacated by Court

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  • 05/08/2019
  • at 09:00 AM in Department 61; Hearing on Motion for Protective Order - Held - Motion Denied

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  • 05/08/2019
  • Notice of Ruling (Ruling Re Plaintiff Tatiana Carmona's Motion for Stay and Protective Order); Filed by Clerk

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  • 05/08/2019
  • Minute Order ( (Hearing on Motion for Protective Order)); Filed by Clerk

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  • 05/08/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Tatiana Carmona (Plaintiff)

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586 More Docket Entries
  • 04/04/2018
  • Minute order entered: 2018-04-04 00:00:00; Filed by Clerk

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  • 04/04/2018
  • Minute Order

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  • 02/20/2018
  • at 08:30 AM in Department 93; Jury Trial - Not Held - Advanced and Vacated

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  • 02/20/2018
  • Minute order entered: 2018-02-20 00:00:00; Filed by Clerk

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  • 02/02/2018
  • at 10:00 AM in Department 93; Final Status Conference (Final Status Conference; Continued by Plaintiff) -

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  • 02/02/2018
  • Minute order entered: 2018-02-02 00:00:00; Filed by Clerk

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  • 02/02/2018
  • Minute Order

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  • 08/19/2016
  • Complaint; Filed by Tatiana Carmona (Plaintiff)

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  • 08/19/2016
  • Complaint

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  • 08/19/2016
  • Summons; Filed by null

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Tentative Rulings

Case Number: BC630731    Hearing Date: January 16, 2020    Dept: 61

Defendant Yeong An Sheu’s Motion to Compel Further Responses to Pre-Trial Requests for Production and Interrogatories, Set One, is GRANTED. The court awards $760 in sanctions against Carmona and her counsel.

  1. MOTIONS TO COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses. (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Sheu moves to compel further responses to Pre-Trial Requests for Production No. 33–42 and Interrogatories No. 19–47. (Separate Statement.) The document requests sought medical records, communications, invoices, and insurance policies in Carmona’s possession that had not been previously produced. The interrogatories asked Carmona to update answers to previous interrogatories and to identify contentions, theories of liability, witnesses, and damages to be asserted at trial, as well as information concerning the health providers and hospitals visited and payments received as a result of Carmona’s alleged injuries. (Separate Statement.)

Carmona argues that Sheu failed to adequately meet and confer before filing this motion. (Opposition at pp. 3–4.) The evidence shows that Carmona served responses on December 3, 2019, that Sheu sent a meet-and-confer letter on December 11, 2019, and that Carmona did not respond. (Vazquez Decl. ¶¶ 3–5.) Carmona cannot have this motion denied based on her own failure to engage in the meet-and-confer process.

Carmona argues that the discovery is “void” because its proof of service states it was served by fax when in reality it was served by mail. (Opposition at p. 4.) Carmona presents no authority for the proposition that an error on the proof of service renders discovery void, and the error did not prevent Carmona from serving responses consisting entirely of objections. (Opposition at p. 4.)

Carmona finally argues that the discovery responses are defective because Code of Civil Procedure § 2031.050 and § 2030.070 allow parties to “propound a supplemental demand” or “propound a supplemental interrogatory” to “inspect, copy, test, or sample any later acquired or discovered documents” or “to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.” (Code Civ. Proc. §§ 2030.070, subd. (a), 2031.050, subd. (a).) The sections require leave from court for the party “to propound an additional number of supplemental interrogatories.” (Code Civ. Proc. §§ 2030.070, subd. (c), 2031.050, subd. (c).) Thus Carmona argues that Sheu overstepped his bounds by propounding several pre-trial requests and interrogatories. (Opposition at pp. 4–5.)

Carmona’s objection on this final point is without merit. Both the document requests and interrogatories contain a single universal request for any new responsive documents or information not previously disclosed in response to prior interrogatories and document demands, just as the statutes provide, and Carmona provided no response to either. (Separate Statements, Request No. 33, Interrogatory No. 19.) The other discovery requests were not the universal “update” requests contemplated by Code of Civil Procedure §§ 2031.050 and 2030.070. Both statutes make clear that the omnibus update discovery requests may be propounded “[i]n addition to the demands for inspection” and “the number of interrogatories” provided by their respective articles. (Code Civ. Proc. §§ 2030.070, subd. (a), 2031.050, subd. (a).) The discovery at issue fits within these limits, and Carmona makes no argument as to why these other requests are improper.

The Motion to Compel Further is GRANTED.

  1. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories or requests for production of documents, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h).)

Sheu asks for $1,900.00 in sanctions against Carmona and her counsel, representing ten hours of attorney work at $190 per hour. (Vazquez Decl. ¶ 10.) The court awards Sheu $760 in sanctions against Carmona and her counsel.

  1. MOTION TO STRIKE OR TAX COSTS

County’s memorandum of costs seeks $6,770.49, consisting of $150 in jury fees, $6,527.68 in deposition costs, and $92.81 in electronic filing or service fees. (

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Carmona moves to tax all deposition costs and electronic filing fees. (Motion at p. 5.) County in response clarifies that the bulk of its deposition costs are in fact service of process costs associated with the service of deposition subpoenas. (Opposition at p. 6.) Such costs are allowable. (Code Civ. Proc. § 1033.5, subd. (a)(4); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) County has supplied invoices detailing the costs it has incurred in serving subpoenas through its registered process server, and seeks a reduced amount of costs of $3,694.70, down from $6,527.68. (Opposition at p. 4.) Based on the invoices provided by County, the court determines that this amount is reasonable.

As to the $92.81 in filing fees, the costs memorandum does not state in what matters they were incurred, and County presents no justification in opposition. Accordingly, the electronic filing fee will be taxed.

Carmona’s Motion to Tax Costs is GRANTED in part. Deposition costs are reduced from $6,527.68 to $3,694.70, and the $92.81 sought for electronic filing fees are taxed in their entirety, leaving a total amount of costs of $3,8447.70.

Case Number: BC630731    Hearing Date: November 26, 2019    Dept: 61

Defendant Yeong An Sheu’s Motion for Summary Judgment is DENIED.

Plaintiff to give notice.

  1. OBJECTIONS

Carmona objects to the declaration of Rudolph Bedford on the grounds that Bedford does not testify as to Sheu’s credentials and that his reliance on medical records is not properly authenticated. But Carmona presents no authority for the proposition that a medical expert’s testimony regarding the standard of care or causation requires testimony regarding the credentials of the relevant actors. And Carmona is incorrect that Bedford’s testimony is not authenticated. Expert declarations may be based on hospital and medical records if the records themselves are properly authenticated. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742–743.) And Sheu here has presented the medical records that Bedford relies on, as well as declarations from the relevant custodians of records as to their being contemporaneously created in the course of the hospital’s operations. (Vazquez Decl. Exhs. C–F; Evid. Code § 1271.) Carmona’s objections to the Vazquez declaration are likewise without merit, as she provides foundation for how the records were obtained, i.e. produced by the relevant hospitals with the declarations of their custodians. Carmona’s objections are therefore OVERRULED.

Sheu’s objections, meanwhile, to the Carmona declaration are OVERRULED, save for Objection No. 27 regarding Carmona’s testimony as to the stent’s causation of her pain and illness, which is testimony concerning medical causation which Carmona is not qualified to offer, and to which the objection is SUSTAINED. Carmona otherwise testifies based on the personal experience of her treatment, and provides adequate foundation for her statements.

Sheu also objects to the Rand-Luby declaration that Carmona submits in opposition, on the grounds that Rand-Luby does not authenticate the medical records upon which she bases her opinions. Sheu is correct that Rand-Luby does not authenticate the medical records she relies on in her declaration, and that Carmona offers no other authentication of the same. And it is well established that a medical expert cannot testify from medical records which are not in themselves authenticated, since “[a]n expert's opinion based on assumptions of fact without evidentiary support has no evidentiary value.” (Garibay, supra, 161 Cal.App.4th at p. 743.)

However, much of Rand-Luby’s testimony has admissible evidentiary basis, such as in the testimony of Carmona herself — which Rand-Luby states she reviewed and which is provided with the opposition (Rand-Luby Decl. ¶ 3) — or by medical records that have already been authenticated by Sheu in his own motion. (See Evid. Code § 1414.) The court has located Rand-Luby’s Exhibits C, E, and F in Sheu’s own authenticated evidence submitted with the Vasquez Declaration.

Sheu also argues that Rand-Luby’s conclusions are not based on a reasonable degree of medical probability. (Reply at p. 6.) But Rand-Luby testifies otherwise. (Rand-Luby Decl. ¶ 21.)

Rand-Luby’s testimony that is not based on evidence in the record is not admissible, however, and accordingly the court SUSTAINS Sheu’s Objection No. 4 as to paragraphs 6 (insofar as it purports to authenticate a picture of the stent) and paragraph 7 (in which Rand-Luby opines as to the lack of any medical record evidencing that Carmona was informed about a stent prior to surgery). Sheu’s remaining objections to the Rand-Luby declaration are OVERRULED.

  1. 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.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

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).)

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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)

  1. MALPRACTICE

Sheu moves for summary judgment against Carmona’s remaining First and Third Causes of Action for IIED and Professional Negligence. Sheu relies on the declaration of Rudolph A. Bedford, M.D., to show that Sheu did not cause or contribute to Carmona’s alleged injuries. (Motion at p. 3.)

“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. 742–743.)

The declaration of Dr. Bedford states that Bedford is a physician licensed in California and board certified in interanal medicine and gastroenterology. (Bedford Decl. ¶ 2.) He testifies that he has reviewed Carmona’s medical records, and provides a narrative of her treatment at the hands of Sheu based thereon. (Bedford Decl. ¶ 4.) Bedford states that Sheu’s treatment of Carmona did not cause or contribute to her alleged injuries. (Bedford Decl. ¶ 5.) Bedford states that Sheu obtained consent to the surgery from Carmona, and following the implementation of the stent Carmona exhibited no symptoms related to the stent, but rather symptoms unrelated thereto. (Bedford Decl. ¶¶ 8–9.)

Carmona counters with her own declaration stating that Sheu never consulted her regarding the surgery or the stent or followed up with her about potential complications. (Carmona Decl. ¶¶ 7–27.) Carmona also presents the declaration of her own expert, Leslie B. Rand-Luby, M.D., a physician and general surgeon licensed to practice in California, who testifies that the stent in fact caused irritation and inflammation in Sheu’s bile duct and the formation of stones. (Rand-Luby Decl. ¶ 17.) The stent was ultimately removed to address these issues. (Rand-Luby Decl. ¶ 18–19.)

The court concludes that triable issues of fact as to the causation of Carmona’s injuries exists, as attested to by the declaration of Carmona and Rand-Luby. Although Sheu argues that Rand-Luby does not explain her conclusion, she in fact does so: There are risks associated with stent placement such as that they will not remain in position or will become clogged, causing pain and injury. (Rand-Luby Decl. ¶ 12.) To that end, it is necessary to follow up with a newly stented patient to warn of the dangers associated with it and plan for follow-up care. (Rand-Luby Decl. ¶ 13.) Sheu failed to do this, or at least Carmona testified that he did. (Rand-Luby Decl. ¶¶ 13–15; Carmona Decl. ¶ 23.) And based on Rand-Luby’s assessment of authenticated records related to the stent removal, the stent’s continued residence inside Carmona’s body caused irritation, inflammation, and other damage. (Rand-Luby Decl. ¶ 18.) Although Sheu argues that Rand-Luby is mistaken in her interpretation of the evidence, the credibility of her assessment is a question for the trier of fact. (Reply at p. 8.)

  1. IIED

The same evidence prevents summary adjudication of Carmona’s IIED claim. “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995 [253 Cal.Rptr.3d 1, 13], review filed (Oct. 22, 2019).) The Rand-Luby declaration contradicts Bedford’s assessment of causation, creating a triable issue of fact.

Sheu also argues that the facts don’t show outrageous conduct or intention to cause emotional distress. (Motion at pp. 8–10.) But the court previously ruled upon a similar argument in Sheu’s demurrer that outrageous conduct, in the form of inserting a stent into an unknowing patient while knowing of the harm it would cause, could constitute outrageous conduct. (See 8/7/2018 Ruling.) And Carmona’s declaration creates triable issues of fact as to whether she was in fact informed of the stent or its associated risks. As to Sheu’s subjective intentions, Sheu submits no evidence on this point, and as such fails to satisfy his initial burden upon summary judgment.

  1. CONTINUANCE FOR DEPOSITION

Finally, Sheu asks this court to continue the motion for summary judgment to allow a deposition of Rand-Luby to be taken regarding her opinion submitted in this matter. (Reply at pp. 8–10.) Sheu relies on St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, which held that “under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert.” (Id. at p. 1540.) In that case, the facts giving rise to cause for a deposition were that the expert declared that a doctor had failed to comply with the standard of care in performing a surgery, when in fact the doctor had not performed the surgery. (Id. at p. 1536.)

Sheu points to the following factors causing Rand-Luby’s deposition to be suspect: that Rand-Luby identifies redness and irritation from photos that do not show it, and testifies as to the state of the stent upon its extraction in a manner not attested to by the record cited; that Rand-Luby opines that Sheu failed to prepare Carmona for discharge, but relies upon a document prepared several days before discharge took place; that the records show that Sheu was in fact discharged by her surgeon, not Sheu; that Rand-Luby at several points refers to Sheu installing a stent in surgery, when surgery was in fact performed by Danielle N. Dabs; and that the Rand-Luby declaration is not signed, but merely contains an “/s/” symbol. (Reply at pp. 9–10.)

These are not adequate grounds to postpone ruling on the motion for summary judgment. Rand-Luby’s testimony concerning the lack of consulting following discharge is supported by Carmona’s declaration submitted with the motion. Additionally, although Bedford testifies from medical records indicating that another doctor performed surgery, there appears to be no dispute that Sheu in fact placed the stent during his ERCP procedure, which is the grounds for Rand-Luby’s causation analysis. (Bedford Decl. ¶ 4f.) Finally, CRC Rule 2.257 subd. (b)(1) allows for electronic signatures of declarations submitted under penalty of perjury, which appears to be the case with the Rand-Luby declaration. The court finds that no additional deposition need precede ruling on this motion.

Accordingly, Sheu’s Motion for Summary Judgment is DENIED.

Case Number: BC630731    Hearing Date: November 07, 2019    Dept: 61

Defendant Ajit S. Deol’s Motion for Summary Judgment is GRANTED. Defendant to submit judgment within five days.

  1. 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.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

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).)

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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)

Deol moves for summary judgment against Carmona’s remaining First, Third, Fifth, and Sixth Causes of Action, on the grounds that Deol’s sole contact with Carmona was a surgical consultation in February 2014, and Deol at all times complied with the standard of care. (Motion at pp. 4–9.)

“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. 742–743.)

Deol relies on the declaration of Jeffrey Philip Salberg, M.D., (“Salberg”), a physician board certified in Internal Medicine. (Salberg Decl. ¶ 1.) Salberg reviews Carmona’s medical records and her encounter with Deol on February 7, 2014, for a surgical consult. (Salberg Decl. ¶¶ 4–10.) Salberg states that Deol complied with the standard of care in recommending to Carmona a surgical option that she ultimately declined. (Salberg Decl. ¶ 11.)

The court finds that Deol has satisfied his burden to show that no triable issues of fact exist as to his breach of the applicable standard of care in his treatment of Carmona. Carmona has filed no opposition contesting the arguments raised in the motion.

The same ruling is appropriate for Carmona’s Breach of Fiduciary Duty claim. “The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.) Salberg’s testimony satisfies Deol’s burden to show that no triable issues of fact exist as to his breach of duty or damages resulting therefrom.

The same is true of Carmona’s remaining IIED and concealment claims. Deol engaged in no outrageous or intentional conduct by complying with the standard of care in his surgical consult with Carmona. Nor may Deol be liable for concealing the stent, because his sole interaction with Carmona was February 7, 2014, before the stent was placed. (Complaint ¶ 7.)

Accordingly, Deol’s Motion for Summary Judgment is GRANTED.

Defendant to give notice and submit judgment within five days.