This case was last updated from Los Angeles County Superior Courts on 01/20/2020 at 04:16:34 (UTC).

DASHIELL GIBBS, ET AL. VS LINDA WILSON, RN, ET AL.

Case Summary

On 02/15/2019 DASHIELL GIBBS filed a Personal Injury - Other Personal Injury lawsuit against LINDA WILSON, RN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5216

  • Filing Date:

    02/15/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

DANIEL S. MURPHY

 

Party Details

Plaintiffs

GIBBS STUART

GIBBS DASHIELL

GIBBS VIOLET

Defendants

PRIVE CARE INC.

FINE CLIFFORD MD

CLIFFORD L. FINE M.D. PROF. CORP.

NICHOLAS R. NIKOLOV M.D. A MEDICAL CORPORATION

BEDFORD AMBULATORY SURGICAL CENTER

WRIGHT DEBORAH LICENSED VOCATIONAL

BEDFORD AMBULATORY SURGERY CENTER INC.

PRIVE

NIKOLOV NICHOLAS R MD

PRIVE AFTERCARE

XYZ NURSING AGENCY

PRIVE ON 3RD LLC

WILSON LINDA RN

Not Classified By Court

BEDFORD AMBULATORY SURGERY CENTER INC

Attorney/Law Firm Details

Plaintiff Attorney

MICHELS PHILIP

Defendant Attorneys

HABER BROOKE W

SNOW KIMBERLY D

HEDRICK KRISTI K.

 

Court Documents

Proof of Service (not Summons and Complaint)

12/2/2019: Proof of Service (not Summons and Complaint)

Amended Complaint - 2ND AMENDED COMPLAINT

1/10/2020: Amended Complaint - 2ND AMENDED COMPLAINT

Case Management Statement

11/21/2019: Case Management Statement

Case Management Statement

10/8/2019: Case Management Statement

Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES DEFENDANT BEDFORD AMBULATORY SURGERY CENTER, INC. ' S NOTICE OF POSTING OF JURY FEES (CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 631)

10/8/2019: Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES DEFENDANT BEDFORD AMBULATORY SURGERY CENTER, INC. ' S NOTICE OF POSTING OF JURY FEES (CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 631)

Case Management Statement

10/9/2019: Case Management Statement

Declaration - DECLARATION OF KEVIN BECKER

9/13/2019: Declaration - DECLARATION OF KEVIN BECKER

Separate Statement

9/13/2019: Separate Statement

Motion for Summary Judgment

9/13/2019: Motion for Summary Judgment

Reply - REPLY OF DEFENDANT BEDFORD AMBULATORY SURGERY CENTER, INC, TO MOTION TO STRIKE MATTERS FROM THE FAC

8/7/2019: Reply - REPLY OF DEFENDANT BEDFORD AMBULATORY SURGERY CENTER, INC, TO MOTION TO STRIKE MATTERS FROM THE FAC

Opposition - OPPOSITION TO DEFENDANT BEDFORD AMBULATORY SURGICAL CENTER, INC.'S MOTION TO STRIKE

8/1/2019: Opposition - OPPOSITION TO DEFENDANT BEDFORD AMBULATORY SURGICAL CENTER, INC.'S MOTION TO STRIKE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 08/01/2019

8/1/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 08/01/2019

Demand for Jury Trial

7/25/2019: Demand for Jury Trial

Motion to Strike (not initial pleading)

7/16/2019: Motion to Strike (not initial pleading)

Declaration - DECLARATION OF JOHN J. WEBER

7/16/2019: Declaration - DECLARATION OF JOHN J. WEBER

Proof of Service by Substituted Service

6/24/2019: Proof of Service by Substituted Service

Proof of Service by Substituted Service

6/28/2019: Proof of Service by Substituted Service

Demand for Jury Trial

5/24/2019: Demand for Jury Trial

76 More Documents Available

 

Docket Entries

  • 01/12/2021
  • Hearing01/12/2021 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 12/10/2020
  • Hearing12/10/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/10/2020
  • DocketSummons (on 2nd Amended Complaint); Filed by Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff); Stuart Gibbs (Plaintiff)

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  • 01/10/2020
  • DocketAmended Complaint (2nd); Filed by Stuart Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff) et al.

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  • 12/09/2019
  • DocketNotice of Ruling; Filed by Stuart Gibbs (Plaintiff)

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  • 12/09/2019
  • DocketNotice of Ruling; Filed by Bedford Ambulatory Surgical Center (Defendant)

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  • 12/06/2019
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - Held

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  • 12/06/2019
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Case Management Conference - Held

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  • 12/06/2019
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 12/06/2019
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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87 More Docket Entries
  • 04/30/2019
  • DocketSummons (on Complaint); Filed by Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff); Stuart Gibbs (Plaintiff)

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  • 04/18/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (re: Dashiell); Filed by Stuart Gibbs (Plaintiff)

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  • 04/18/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (re: Violet); Filed by Stuart Gibbs (Plaintiff)

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  • 02/21/2019
  • DocketStanding Order re PI Procedures and Hearing Dates; Filed by Clerk

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  • 02/21/2019
  • DocketCertificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 02/15/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 02/15/2019
  • DocketCivil Case Cover Sheet; Filed by Stuart Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff) et al.

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  • 02/15/2019
  • DocketCivil Case Cover Sheet; Filed by Stuart Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff) et al.

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  • 02/15/2019
  • DocketComplaint; Filed by Stuart Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff) et al.

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  • 02/15/2019
  • DocketDeclaration (of Successor in Interest); Filed by Stuart Gibbs (Plaintiff); Dashiell Gibbs (Plaintiff); Violet Gibbs (Plaintiff) et al.

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Tentative Rulings

Case Number: 19STCV05216    Hearing Date: October 09, 2020    Dept: 32

dashiell gibbs, et al.

Plaintiffs,

v.

PRIVE AFTERCARE, et. al.

Defendants.

Case No.: 19STCV05216

Hearing Date: October 9, 2020

[TENTATIVE] order RE:

motion for trial setting preference

Background

This is a medical malpractice action brought by Plaintiffs Dashiell Gibbs (Dashiell), by and through his guardian ad litem Stuart Gibbs; Violet Gibbs (Violet), by and through her guardian ad litem Stuart Gibbs; and Stuart Gibbs (Stuart), individually and as successor-in-interest to the estate of Suzanne Patmore-Gibbs (Suzanne), against Defendants Prive Aftercare; Prive; Prive Care, Inc.; Prive on 3rd, LLC (collectively, Prive); Bedford Ambulatory Surgery Center; Bedford Ambulatory Surgery Center, Inc. (collectively, Bedford); Nicholas R. Nikolov, M.D., individually and as a professional corporation (collectively, Nikolov); Clifford L. Fine, M.D., individually and as a private corporation (collectively, Fine); Linda Wilson, R.N. (Wilson); Deborah Wright, LVN (Wright); and XYZ Nursing Agency (XYZ).

The operative pleading is the Second Amended Complaint (SAC) filed on January 10, 2020. The SAC asserts causes of action for (1) wrongful death due to medical negligence against Bedford, Nikolov, and Fine, (2) wrongful death due to nursing negligence against Wilson and Wright, (3) wrongful death due to general negligence against XYZ, (4) wrongful death due to medical negligence against Prive, (5) intentional misrepresentation against Prive, (6) negligent misrepresentation against Prive, and (7) survival against all Defendants.

Discussion

Plaintiffs move for a trial setting preference order pursuant to CCP section 36(b).[1]

CCP section 36(b) states in pertinent part: “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.” When the conditions of CCP section 36(b) are met, a trial setting preference order is mandatory. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.)

“Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider’s alleged professional negligence … shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.” (CCP § 36(g).)

Plaintiff Violet is twelve years old. (Michels Decl. ¶ 2, Ex. 1.) In the SAC’s first four causes of action, Violet seeks to recover damages for wrongful death. Therefore, trial setting preference is mandatory.

Plaintiffs’ motion for trial setting preference is granted. The Court will discuss the trial date with the parties at the hearing.


[1] Plaintiffs’ request for judicial notice of the Application and Order for Appointment of Guardian ad Litem filed in the instant case is granted. (Evid. Code § 452(d).)

Case Number: 19STCV05216    Hearing Date: August 12, 2020    Dept: 32

dashiell gibbs, et al.

Plaintiffs,

v.

PRIVE AFTERCARE, et. al.

Defendants.

Case No.: 19STCV05216

Hearing Date: August 12, 2020

[TENTATIVE] order RE:

(1) prive defendants’ motion to strike portions of the second amended complaint

(2) plaintiffs’ motion for trial setting preference

Background

This is a medical malpractice action brought by Plaintiffs Dashiell Gibbs (Dashiell), by and through his guardian ad litem Stuart Gibbs; Violet Gibbs (Violet), by and through her guardian ad litem Stuart Gibbs; and Stuart Gibbs (Stuart), individually and as successor-in-interest to the estate of Suzanne Patmore-Gibbs (Suzanne), against Defendants Prive Aftercare; Prive; Prive Care, Inc.; Prive on 3rd, LLC (collectively, Prive); Bedford Ambulatory Surgery Center; Bedford Ambulatory Surgery Center, Inc. (collectively, Bedford); Nicholas R. Nikolov, M.D., individually and as a professional corporation (collectively, Nikolov); Clifford L. Fine, M.D., individually and as a private corporation (collectively, Fine); Linda Wilson, R.N. (Wilson); Deborah Wright, LVN (Wright); and XYZ Nursing Agency (XYZ).

The operative pleading is the Second Amended Complaint (SAC) filed on January 10, 2020. The SAC asserts causes of action for (1) wrongful death due to medical negligence against Bedford, Nikolov, and Fine, (2) wrongful death due to nursing negligence against Wilson and Wright, (3) wrongful death due to general negligence against XYZ, (4) wrongful death due to medical negligence against Prive, (5) intentional misrepresentation against Prive, (6) negligent misrepresentation against Prive, and (7) survival against all Defendants.

Motion to Strike Portions of the SAC

Prive Care, Inc. and Prive on 3rd, LLC (hereinafter, Prive Defendants) move to strike portions of the SAC.

A. Discussion

1. Misrepresentation Allegations

In their fifth and sixth causes of actions, Plaintiffs allege on information and belief that Prive Defendants’ agents, through their advertisements and promotional literature, represented to the decedent Suzanne and her agents that the Prive Defendants’ aftercare facilities could and would provide appropriate and competent care and treatment to the decedent. (SAC ¶¶ 44, 59.) These representations included:

A. These defendants and/or their employees would provide “care that met or exceeded all applicable legal requirements and standards”;

B. Decedent would receive “proper care, attention, and assistance at all times”;

C. Decedent would be provided with a sufficient level of care by individuals who were properly trained, qualified, supervised and licensed (where applicable) to attend to her needs;

D. During decedent’s residency at the Prive on 3rd facility, defendants named in this cause of action would maintain adequate levels of trained and qualified personnel, staff and equipment necessary for the safety and well-being of decedent;

E. Changes in decedent’s physical condition would promptly be reported to her attending and/or treating physician; that the defendants would maintain an “ongoing regimen with a patient’s physician, carefully monitoring your progress together, to insure their plan for recovery has every possible chance for success”; and “it is the Policy of Prive Care, that our skilled nurse shall be responsible for notifying the physician and clinical supervisor for every significant change in the patient’s condition”;

F. Physician’s orders would be promptly, accurately, and timely carried out;

G. The facility would be run and managed in a way which complied with all state and federal laws and regulations. (SAC ¶¶ 44, 59.)

Plaintiffs allege that these misrepresentations were false because Prive Defendants “knew that they would be unable to provide [Suzanne] and patients like her, with the care and treatment she required or the level of quality care as represented.” (SAC ¶¶ 45, 60.) Plaintiffs allege that Suzanne relied upon these misrepresentations and, as a result, was deprived of timely and adequate medical care. (SAC ¶¶ 50, 65.)

Prive Defendants move to strike the aforementioned representations from the SAC because the representations do not state past or existing material facts. “The law is well established that actionable misrepresentations must pertain to past or existing material facts. [Citation.] Statements or predictions regarding future events are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

In response, Plaintiffs explain that these alleged misrepresentations are actionable under a promissory fraud theory.

“ ‘Promissory fraud’ is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.] [¶] An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-74.)

The elements of promissory fraud are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promisee.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.)

The Court partly agrees with Plaintiffs. These alleged misrepresentations are actionable under a promissory fraud theory because Plaintiffs have alleged that Defendants made these representations without the intention to perform. (See SAC ¶ 45.) However, these alleged misrepresentations are not viable under a negligent misrepresentation theory because California law does not recognize a “negligent false promise”: “To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing.  [Citations.] Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud.  The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., ‘The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.’ (Civ. Code, § 1710, subd. (2).) Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.)

Prive Defendants’ reliance on Cansino is inapt. There, plaintiffs approached a lender in order to refinance a loan on their property. The lender’s “lending personnel” represented that plaintiffs’ property “was appreciating and that plaintiffs could obtain several years of appreciation in their property so that they could sell or refinance before having to make higher monthly payments or pay a future accumulated principal of $620,000.” The lender argued that these representations depicted the future of the real estate market and, as such, were “forecasts of future events and not actionable misrepresentations.” The appellate court agreed. The appellate court explained that “[l]ike acts of nature and their consequences, the future state of a financial market is unknown. Any future market forecast must be regarded not as fact but as prediction or speculation. [Citation.] As a matter of law, defendants’ alleged representations — that plaintiffs’ property would continue to appreciate in the future and that plaintiffs could then sell or refinance their home based on this forecasted future appreciation — are not actionable in fraud.” (Cansino, supra, 224 Cal.App.4th at 1470-71.)

Cansino is distinguishable for, at least, two reasons. First, the appellate court did not evaluate whether the misrepresentations alleged by the plaintiffs constituted promissory fraud. Cansino therefore does not stand for the proposition that this promissory fraud claim is untenable. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 (“Cases are not authority for propositions not considered therein.”).) Second, Cansino involved misrepresentations about the future state of a financial market, not promises to provide services. Hence, there was no conceivable promissory fraud claim to examine in Cansino.

In reply, Prive Defendants point to allegations incorporated by reference in Plaintiffs’ fifth cause of action (SAC ¶ 41) to show that Prive Defendants allegedly did intend to provide services to the decedent and were only negligent in doing so. The Court finds this argument unpersuasive. Plaintiffs can allege inconsistent legal theories in their complaint. Despite some internal inconsistencies in the SAC due to “chain letter” pleading, the thrust of Plaintiffs’ promissory fraud claim is clear: Prive Defendants allegedly made false promises to the decedent through their advertising literature in order to induce the decedent to receive treatment at their after-care facility.

In sum, the Court shall only strike Subparts (A) through (G) of Paragraph 59 of the SAC.

2. Punitive Damages

Prive Defendants move to strike Plaintiffs’ punitive damages claim in their fifth cause of action for intentional misrepresentation and seventh cause of action for survival. Prive Defendants argue that Plaintiffs cannot maintain their punitive damages claim because of CCP section 425.13.

CCP section 425.13(a) provides in pertinent part: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” As noted in the Court’s prior motion to strike ruling, Prive Defendants are a “health care provider” within the meaning of this statute because they are a licensed home health agency.

Plaintiffs argue that this statute does not apply because Prive Defendants were not acting with the scope of their home health agency license. Plaintiffs explain that a home health agency must provide nursing services to patients in their homes whereas Prive Defendants were operating an aftercare facility. The Court disagrees.

The Health and Safety Code defines a “home health agency” as “a private or public organization, including, but not limited to, any partnership, corporation, political subdivision of the state, or other government agency within the state, which provides, or arranges for the provision of, skilled nursing services, to persons in their temporary or permanent place of residence.” (Health & Saf. Code § 1727(a).) The Health and Safety Code defines “skilled nursing services” as “services provided by a registered nurse or licensed vocational nurse.” (Health & Saf. Code § 1727(b).) Plaintiffs allege that the decedent was a “resident” of the Prive Defendants’ after-care facility. (SAC ¶ 36.) Plaintiffs allege that Prive Defendants’ negligence in providing the decedent medical services caused the decedent to suffer harm. (SAC ¶¶ 37-38.) Therefore, Plaintiffs have alleged facts showing that Prive Defendants were acting within the scope of their home health agency license when the wrongful conduct allegedly occurred.

Plaintiffs have not complied with the procedures set forth in CCP section 425.13. Plaintiffs’ punitive damages claim against the Prive Defendants is thus without merit.

B. Conclusion

Prive Defendants’ motion to strike is granted in part. The Court hereby strikes the following: (1) Subparts (A) through (G) of Paragraph 59 of the SAC and (2) the sixth item in Plaintiffs’ prayer for relief. The Court also rules that Plaintiffs’ punitive damages request in Paragraph 71 does not apply to Prive Defendants.

Motion for Trial Setting Preference

Plaintiffs move for a trial setting preference order pursuant to CCP section 36(b).[1]

CCP section 36(b) states in pertinent part: “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.” When the conditions of CCP section 36(b) are met, a trial setting preference order is mandatory. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.)

“Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider’s alleged professional negligence … shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.” (CCP § 36(g).)

Plaintiff Violet is twelve years old. (Michels Decl. ¶ 2, Ex. 1.) In the SAC’s first four causes of action, Violet seeks to recover damages for wrongful death. Therefore, trial setting preference is mandatory.

Defendants do not oppose this motion. Defendants Fine, Nikolov, Prive Defendants, Wilson, and Wright request that the matter be set for trial nine months from the hearing date on this motion, i.e., May 2021, so that the parties can conduct discovery and have ample time to prepare their cases. The Bedford Defendants request that the Court take into consideration the fact that its trial counsel will be on vacation for the entire month of May 2021. (Beyk Decl. ¶ 2.)

Plaintiffs’ motion for trial setting preference is granted. The Court will discuss the trial date with the parties at the hearing.


[1] Plaintiffs’ request for judicial notice of the Application and Order for Appointment of Guardian ad Litem filed in the instant case is granted. (Evid. Code § 452(d).)

Case Number: 19STCV05216    Hearing Date: December 06, 2019    Dept: 32

dashiell gibbs, et al.

Plaintiffs,

v.

PRIVE AFTERCARE, et. al.

Defendants.

Case No.: 19STCV05216

Hearing Date: December 6, 2019

[TENTATIVE] order RE:

(1) prive defendants’ demurrer and motion to strike

(2) Bedford ambulatory’s motion to strike

BACKGROUND

This is a medical malpractice action brought by Plaintiffs Dashiell Gibbs (“Dashiell”), by and through her guardian ad litem Stuart Gibbs; Violet Gibbs (“Violet”), by and through her guardian ad litem Stuart Gibbs; and Stuart Gibbs (“Stuart”), individually and as successor-in-interest to the estate of Suzanne Patmore-Gibbs (“Suzanne”), against Defendants Prive Aftercare; Prive; Prive Care, Inc.; Prive on 3rd, LLC (collectively, “Prive”); Bedford Ambulatory Surgery Center; Bedford; Bedford Ambulatory Surgery Center, Inc. (collectively, “Bedford”); Nicholas R. Nikolov, M.D., individually and as a professional corporation (collectively, “Nikolov”); Clifford L. Fine, M.D., individually and as a private corporation (collectively, “Fine”); Linda Wilson, R.N. (“Wilson”); Deborah Wright, LVN (“Wright”); and XYZ Nursing Agency (“XYZ”).

The operative pleading is the First Amended Complaint (“FAC”) filed on May 1, 2019. The FAC asserts causes of action for (1) wrongful death due to medical negligence against Bedford, Nikolov, and Fine, (2) wrongful death due to nursing negligence against Wilson and Wright, (3) wrongful death due to general negligence against XYZ, (4) wrongful death due to medical negligence against Prive, (5) intentional misrepresentation against Prive, (6) negligent misrepresentation against Prive, and (7) survival against all Defendants.

DEMURRER

Prive Care, Inc. and Prive on 3rd, LLC (hereinafter, “Prive Defendants”) demur to the FAC’s fifth and sixth causes of action on the ground that each fails to state facts sufficient to constitute a cause of action.

A. Legal Standard

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

B. Request for Judicial Notice

Prive Defendants’ requests for judicial notice are GRANTED.

C. Discussion

In their fifth cause of action for intentional misrepresentation and sixth cause of action for negligent misrepresentation, Plaintiffs allege that Prive and its agents “advertised and promoted themselves as skilled in the attendant and nursing care needed to observe, monitor, recognize the condition and needs of and care for a post-operative patient in [Suzanne’s] circumstances.” (FAC ¶¶ 42, 56.) Specifically, Prive’s agents allegedly represented that:

  1. Prive and its employees would provide “care that met or exceeded all applicable legal requirements and standards”;

  2. Suzanne would receive “proper care, attention, and assistance at all times”;

  3. Suzanne would be provided with a sufficient level of care by individuals who were properly trained, qualified, supervised and licensed (where applicable) to attend to her needs;

  4. During Suzanne’s residency at the Prive on 3rd facility, Prive would maintain adequate levels of trained and qualified personnel staff and equipment necessary for the safety and well-being of Suzanne;

  5. Changes in Suzanne’s physical condition would promptly be reported to her attending and/or treating physician;

  6. Her physician’s orders would be promptly, accurately, and timely carried out;

  7. The facility would be run and managed in a way which complied with all state and federal laws and regulations;

  8. Prive was “the industry leader in providing unparalleled aftercare service”;

  9. Prive provided “a state of the art medical recovery center”;

  10. Prive’s services were the equivalent of a “5 star hospital”;

  11. Prive’s nurses and other care providers were the “best and brightest”;

  12. Prive’s care providers maintained “years of experience handling this level of duty”;

  13. Prive was “known for their attention to detail”;

  14. Prive would “thoroughly address[]” “every perspective and every portion of the process”; and

  15. Prive’s nurses were “skilled” at the highest level to assure the safety of patients obtaining aftercare at their facilities. (FAC ¶¶ 44, 58.)

    Plaintiffs allege that these advertisements / representations were false statements of material fact. (FAC ¶¶ 46-48, 59-61.) According to Plaintiffs, Prive lacked sufficient staff and equipment to provide adequate care to Suzanne. (FAC ¶¶ 47, 61.) Plaintiffs allege that Prive knew that these representations were false at the time that they were made. (FAC ¶¶ 45, 62.) Plaintiffs allege that Prive made these representations to induce Suzanne to receive post-operative recovery care and monitoring at Prive’s facility. (FAC ¶¶ 42, 56.) Plaintiffs allege that Suzanne or her agents justifiably relied upon these representations in deciding whether to utilize Prive’s facility as they inquired about Prive’s services prior to agreeing to utilize them (FAC ¶¶ 42, 56) and had no reasonable means through which to learn the true facts (FAC ¶¶ 49, 63). Plaintiffs allege that Suzanne died as a result of these misrepresentations. (FAC ¶¶ 50, 64.)

    The elements of intentional misrepresentation are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.) “The elements of negligent misrepresentation are the same except for the second element, which for negligent misrepresentation is the defendant made the representation without reasonable ground for believing it to be true.” (Ibid.)

“Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) This specificity requirement means that a plaintiff must plead facts showing how, when, where, to whom, and by what means the representations were tendered. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.) In addition, when a plaintiff is asserting fraud against a corporate defendant, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838.)

Prive Defendants primarily contend that these causes of action fail for lack of specificity. Prive Defendants argue that “there are no allegations [of] who spoke on behalf of Prive Care or Prive 3d, what was said or written, and when it was said or written.” (Dem. at 7.) Further, Prive Defendants asserts that “[i]f the alleged misrepresentations are based on allegedly false advertising, plaintiff has not attached a copy of the advertisements, indicating how they were false, how plaintiffs’ decedent relied on them, and the damages alleged[ly] suffered as a result of any reliance.” (Ibid.) The Court mostly agrees.

A fundamental problem with the FAC identified by Prive Defendants is that it is unclear whether these misrepresentation claims are based on advertisements or in-person communications. Plaintiffs claim the former (Opp. at 7-8), and the FAC, at times, supports this claim: “The defendants named in this cause of action and their agents or employees advertised and promoted themselves as skilled in the attendant and nursing care needed to observe, monitor, recognize the condition and needs of and care for a post-operative patient in decedent’s circumstances.” (FAC ¶ 42.) However, the FAC does not clearly characterize all the specific representations enumerated in Paragraph 44 as advertisements. For example, the representations insofar as they refer to Suzanne appear to be personalized (FAC ¶ 44b-e), and the FAC notes that Prive made these representations through “their advertisements and otherwise” (FAC ¶ 45).

For alleged in-person misrepresentations, Plaintiffs must meet the specificity requirements set forth ante. Plaintiffs have sufficiently plead their misrepresentation claims’ justifiable reliance and damages elements. However, Plaintiffs have insufficiently plead how, when, where, to whom, and by what means the representations were tendered as well as the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.

For advertising misrepresentations, although the pleading requirements are more relaxed, Plaintiffs must still adhere to the instructions of Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 218, viz., “to set out or attach a representative selection of advertisements, to state the misrepresentations made by those advertisements, and to indicate the language or images upon which any implied misrepresentations are based.” Plaintiffs have not adhered to these instructions by failing to clearly set out or attach a representative selection of advertisements.

Prive Defendants also argue that the representations identified by Plaintiffs do not constitute misrepresentations as some are “statements of the requirements for a licensed facility” (FAC ¶¶ 44a-44g, 58a-58g) and others are puffery (FAC ¶¶ 44h-44o, 58h-o). The Court is unpersuaded. Assuming arguendo that the first set of misrepresentations are recitations of the requirements for a licensed facility, such recitations could still be actionable misrepresentations to the extent that they are factually false. Further, while many of the second set of misrepresentations are puffery, some reflect factual predicates that could be proven false. (See, e.g., FAC ¶ 44l, o.)

Finally, Prive Defendants argue that the representations identified by Plaintiffs are not actionable because they do not pertain to past or existing material facts. Prive Defendants are only partly correct. The first set of representations are promises to do something and therefore not intentional misrepresentations. (FAC ¶ 44a-44g; see Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1252 (listing four forms of deceit).) The second set of misrepresentations are not promises to do something. (FAC ¶¶ 44h-44o, 58h-o.) To reiterate, some of these latter representations are potentially actionable. (See, e.g., FAC ¶ 44l, o.)

Prive Defendants’ demurrer to Plaintiffs’ fifth and sixth causes of action is SUSTAINED WITH LEAVE TO AMEND.

MOTIONS TO STRIKE

Bedford Ambulatory Surgery Center, Inc. (“Bedford Ambulatory”) moves to strike the FAC’s (1) prayer for attorney fees and (2) punitive damages allegations. Prive Defendants move to strike the FAC’s punitive damages allegations.

A. Legal Standard

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (CCP § 435(b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal. App. 3d 568, 575.)

B. Request for Judicial Notice

Bedford Ambulatory’s and Prive Defendants’ requests for judicial notice are GRANTED.

C. Discussion

1. Attorney Fees

Bedford Ambulatory moves to strike the FAC’s prayer for attorney fees on the ground that the FAC fails to allege a statutory or contractual basis for recovery of those fees in this action. Bedford Ambulatory’s argument is well-taken because Plaintiffs have failed to cite a statutory or contractual basis for these fees in their pleading and opposition brief.

2. Punitive Damages

Bedford Ambulatory and Prive Defendants move to strike Plaintiffs’ punitive damages claim on two grounds: (1) Plaintiffs cannot request punitive damages against Bedford Ambulatory and Prive Care without leave of court under CCP section 425.13 and (2) Plaintiffs have insufficiently plead facts of malicious or despicable conduct.

a. Compliance with CCP § 425.13

CCP section 425.13(a) provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” For purposes of this statute, “health care provider” means “any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” (CCP § 425.13(b).)

i. Bedford Ambulatory

Bedford Ambulatory asserts that it is a “health care provider” under this statute and entitled to its protections because Bedford Ambulatory is a “surgical clinic” pursuant to Health and Safety Code section 1204. That section defines a “surgical clinic” as “a clinic that is not part of a hospital and that provides ambulatory surgical care for patients who remain less than 24 hours.” (H&S Code § 1204(b)(1).) Bedford Ambulatory asserts that it is a “surgical clinic” under this statute because it has a National Provider Identifier from the U.S. Center for Medicare and Medicaid Services (RJN Ex. D) and a surgery center accreditation from the American Association for Accreditation of Ambulatory Surgery Facilities (RJN Ex. E)

Bedford Ambulatory’s argument is unavailing. As Plaintiffs point out, the question is whether Bedford Ambulatory is licensed pursuant to Division 2 of the Health and Safety Code, not whether it is eligible to receive such a license or has accreditations from national institutions. Bedford Ambulatory has not proven such licensing, so Bedford Ambulatory may not receive the protections afforded by CCP section 425.13.

ii. Prive Care

Prive Defendants assert that Prive Care is a “health care provider” under this statute because Prive Care is a licensed home health agency licensed pursuant to Health and Safety Code sections 1725, et seq. In support, Prive Defendants submit a license issued by the California Department of Public Health to Prive Care. (RJN Ex. A.)

Prive Defendants’ argument is well-taken. Prive Care has proven that it is a “health care provider” under CCP section 425.13, and the FAC indicates that Prive Care’s professional negligence caused Plaintiffs to suffer harm. (See Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (stating that this statute applies when the nature and cause of plaintiff’s injury “is directly related to the manner in which professional services were provided”).)

b. Sufficiency of Punitive Damages Allegations

Civil Code section 3294(a), the general punitive damage statute, authorizes an award of punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

For purposes of section 3294, “malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” “Fraud” means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294(c).)

In order to state a prima facie claim for punitive damages, a complaint must contain allegations that the defendant has been guilty of oppression, fraud, or malice within the meaning of Civil Code section 3294. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Conclusory allegations that defendant’s conduct was intentional, willful, or fraudulent are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) Further, in order to state a claim for punitive damages against an employer based upon the acts of the employees, the plaintiff must plead that “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294(b).)

Bedford Ambulatory and Prive Defendants argue that Plaintiffs have plead insufficient facts to show oppression, fraud, or malice. They also assert that Plaintiffs have alleged insufficient facts showing compliance with Civil Code section 3294(b). The Court agrees. Plaintiffs have insufficiently plead their misrepresentations claims and the remainder of their claims does not support recovery of punitive damages.

CONCLUSION

Prive Defendants’ demurrer to the FAC’s fifth and sixth causes of action is SUSTAINED WITH LEAVE TO AMEND. Prive Defendant’s motion to strike the FAC’s punitive damages allegations is GRANTED.

Bedford Ambulatory’s motion to strike the FAC’s prayer for attorney fees and punitive damages allegations is GRANTED.

Case Number: 19STCV05216    Hearing Date: December 04, 2019    Dept: 32

dashiell gibbs, et al.

Plaintiffs,

v.

PRIVE AFTERCARE, et. al.

Defendants.

Case No.: 19STCV05216

Hearing Date: December 4, 2019

[TENTATIVE] order RE:

fine’s MOTION FOR SUMMARY JUDGMENT

BACKGROUND

This is a medical malpractice action brought by Plaintiffs Dashiell Gibbs (“Dashiell”), by and through her guardian ad litem Stuart Gibbs; Violet Gibbs (“Violet”), by and through her guardian ad litem Stuart Gibbs; and Stuart Gibbs (“Stuart”), individually and as successor-in-interest to the estate of Suzanne Patmore-Gibbs (“Suzanne”), against Defendants Prive Aftercare; Prive; Prive Care, Inc.; Prive on 3rd, LLC (collectively, “Prive”); Bedford Ambulatory Surgery Center; Bedford; Bedford Ambulatory Surgery Center, Inc. (collectively, “Bedford”); Nicholas R. Nikolov, M.D., individually and as a professional corporation (collectively, “Nikolov”); Clifford L. Fine, M.D., individually and as a private corporation (collectively, “Fine”); Linda Wilson, R.N. (“Wilson”); Deborah Wright, LVN (“Wright”); and XYZ Nursing Agency (“XYZ”).

The operative pleading is the First Amended Complaint (“FAC”) filed on May 1, 2019. The FAC asserts causes of action for (1) wrongful death due to medical negligence against Bedford, Nikolov, and Fine, (2) wrongful death due to nursing negligence against Wilson and Wright, (3) wrongful death due to general negligence against XYZ, (4) wrongful death due to medical negligence against Prive, (5) intentional misrepresentation against Prive, (6) negligent misrepresentation against Prive, and (7) survival against all Defendants.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) 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. (CCP § 437c(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, 850-51.)

EVIDENTIARY OBJECTIONS

Fine’s objections to the Mazzei Declaration are OVERRULED.

The Court has not ruled on Plaintiffs’ objections to Fine’s evidence because those objections are not material to the disposition of this motion. (CCP § 437c(q).)

DISCUSSION

Fine moves for summary judgment on the two causes of action asserted against him in the FAC — (1) a wrongful death claim and (2) a survivor claim.

Plaintiffs’ wrongful death claim against Fine is predicated on a theory of medical negligence. Accordingly, the elements of this wrongful death claim are (1) a duty to use such skill, prudence, and diligence as other members of the medical profession commonly possess and exercise, (2) breach of that duty, (3) a proximate causal connection between the negligent conduct and the decedent’s death, and (4) resulting damages consisting of pecuniary loss suffered by the heirs. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 (wrongful death elements and medical malpractice elements).) Plaintiffs’ survivor claim against Fine is predicated on this same theory of medical negligence. (See FAC ¶¶ 69-70.) As such, Plaintiffs’ survivor claim also rests on a showing of (1) a duty to use such skill, prudence, and diligence as other members of the medical profession commonly possess and exercise, (2) breach of that duty, and (3) a proximate causal connection between the negligent conduct and the decedent’s death.

Fine contends that Plaintiffs cannot establish that (1) he breached the standard of care in his care and treatment of Suzanne or (2) his care and treatment of Suzanne caused or contributed to her death.

In support, Fine presents a declaration from Kevin Becker, M.D. (“Becker”). Becker is a physician licensed to practice medicine in California and is Board-certified in Anesthesiology. (Becker Decl. ¶ 1.) After reviewing Suzanne’s medical records, Becker concludes that (1) the care and treatment provided to Suzanne by Fine complied with the applicable standard of care at all times and (2) to a reasonable degree of medical probability, there was no act or omission on the part of Fine which caused, contributed to, or was a substantial factor in causing Suzanne’s death. (Becker Decl. ¶ 8.) Becker notes that Fine performed an appropriate pre-operative assessment, formulated an appropriate anesthetic plan for Gibbs’ procedure, appropriately selected general endotracheal anesthesia to Gibbs, appropriately monitored and recorded Gibbs’ vital signs, appropriately charted the administration of Lovenox in a clearly-marked addendum, and appropriately discharged her from the post-anesthesia care unit (“PACU”). (Becker Decl. ¶ 8(a)-(f).)

In response, Plaintiffs submit a declaration from William J. Mazzei, M.D. (“Mazzei”). Mazzei, like Becker, is a physician licensed to practice medicine in California and is Board-certified in Anesthesiology. (Mazzei Decl. ¶ 1.)

Mazzei disagrees with Becker’s opinion that Fine’s medical care and treatment of Suzanne complied with the applicable standard of care at all times. (Mazzei Decl. ¶ 6.) Mazzei opines that Fine breached the standard of care by failing to confirm that Suzanne would be discharged to a general acute care hospital instead of an aftercare facility. (Mazzei Decl. ¶ 6c.) According to Mazzei, Suzanne required a general acute care hospital following surgery because she was at a “high risk for post-operative complications.” (Ibid.) Mazzei notes that at the hospital, Suzanne “would have received close monitoring and a higher level of medical attention” as the hospital would have “facilities to perform electrocardiograms, chest x-rays, massive fluid and blood transfusions, and a physician immediately available.” (Ibid.) Conversely, Mazzei notes that aftercare facilities “do not possess or have readily available the level of resources that general acute care hospitals possess.” (Mazzei Decl. ¶ 6d.) According to Mazzei, “[a] reasonably prudent physician i[n] Dr. Fine’s position would have understood that an aftercare facility, with its limited abilities to respond to foreseeable complications, is insufficient for patients such as [Suzanne].” (Mazzei Decl. ¶ 6e.)

Mazzei also disagrees with Becker’s opinion that Fine’s medical care and treatment of Suzanne did not cause or contribute to her death. (Mazzei Decl. ¶ 6f.) Mazzei explains that Fine’s decision to discharge Suzanne to an aftercare facility resulted in a failure to appropriately monitor her and respond to her deteriorating medical condition. (Ibid.) Mazzei opines to a reasonable medical probability that “if [Suzanne] had been directly discharged following surgery to a general acute care hospital …, she would have received the appropriate level of monitoring and medical care and attention and would have survived her post-operative complications.” (Mazzei Decl. ¶ 6g.) Moreover, “if [Suzanne] had been in a general acute care hospital and experienced the same complications on the evening of March 28, she would have received prompt massive fluid and blood replacement and she would be alive today.” (Ibid.)

Fine disputes the reliability of Mazzei’s expert opinion regarding breach of the standard of care and causation. As to breach, Fine argues that Mazzei assumes and speculates that Fine made the decision as to where Suzanne would be discharged to and ignores that this decision was made pursuant to an arrangement between Suzanne and her surgeon, Nikolav. The Court is unpersuaded. Mazzei delineated a standard of care here based on the same relevant facts cited by Becker and referenced by Fine in support of this motion. (Mazzei Decl. ¶ 4.) Based on these facts, Mazzei opines: “The standard of care required Dr. Fine to confirm that [Suzanne] would be discharged to a general acute care hospital.” (Mazzei Decl. ¶ 6c.) Fine has not shown that he complied with this standard of care or otherwise was excused from complying with the same. If Fine had no role in the decision as to where Suzanne would be discharged, then Fine should have set forth evidence substantiating the same and provided Mazzei with an opportunity to opine whether Fine still had the duty to confirm that this arrangement was appropriate given Suzanne’s medical condition.

Fine also contends that Mazzei has failed to provide anything more than conclusory opinions in support of his theory of causation. Not so. Mazzei has explained (1) why Suzanne was at “a high risk for post-operative complications” (Mazzei Decl. ¶ 6(a)-(c)), (2) why Suzanne required discharge to a general acute care hospital (Mazzei Decl. ¶ 6(c)), and (3) why Suzanne’s discharge to an aftercare facility was insufficient (Mazzei Decl. ¶ 6(d)-(e)). Based on these considerations, Mazzei opines that “to a reasonable degree of medical probability, if [Suzanne] had been in a general acute care hospital and experienced the same complications on the evening of March 28, she would have received prompt massive fluid and blood replacement and she would be alive today.” (Mazzei Decl. ¶ 6(g).) The logic of Mazzei’s theory of causation is reasonable and sufficiently supported.

Plaintiffs’ conflicting expert evidence establishes a triable issue of material fact as to whether Fine breached the standard of care and whether this alleged breach caused or contributed to Suzanne’s death. (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

CONCLUSION

Defendant Fine’s motion for summary judgment is DENIED.

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