This case was last updated from Los Angeles County Superior Courts on 07/10/2019 at 01:17:42 (UTC).

JASON STEGER VS CSJ PROVIDENCE ST JOSEPH MEDICAL CENTER ET A

Case Summary

On 01/22/2018 JASON STEGER filed a Personal Injury - Medical Malpractice lawsuit against CSJ PROVIDENCE ST JOSEPH MEDICAL CENTER ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1050

  • Filing Date:

    01/22/2018

  • 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

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

STEGER JASON

Defendants and Respondents

KAO JAMES DR.

SIMIC PETER JOHN JR. M.D.

KASHER JOHN A. M.D.

CSJ PROVIDENCE ST. JOSEPH MEDICAL CENTER

PROVIDENCE HEALTH & SERVICES FOUNDATION/

MAKAREWICSZ KATHLEEN M. M.D.

DOES 1 - 100

ASSAI JILBERT M.D.

PROVIDENCE ST. JOSEPH MEDICAL CENTER

PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFOR

PROVIDENCE HEALTH & SERVICES FOUNDATION

MAKAREWICSZ M.D. KATHLEEN M.

SIMIC JR. M.D. PETER JOHN

KAO DR. JAMES

PROVIDENCE HEALTH SYSTEM-SOUTHERN

KASHER M.D. JOHN A.

ASSAI M.D. JILBERT

12 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LINDEMANN BLAKE J.

LINDEMANN LAW FIRM APC

LINDEMANN BLAKE JOSEPH

Defendant and Respondent Attorneys

LA FOLLETTE JOHNSON DE HAAS FESLER

FRASER STEPHEN C. ESQ.

KJAR MCKENNA & STOCKALPER LLP

DUMMIT CRAIG STEPHEN ESQ.

LA FOLLETTE JOHNSON DEHAAS FESLER & AMES

MCKENNA ROBERT LOWELL III

FRASER STEPHEN CLARK ESQ.

STAPLETON CHRISTOPHER ALAN

CASEY EMILY ROSE

FRASER WATSON & CROUTCH LLP

DUMMIT BUCHHOLZ & TRAPP

DUMMIT CRAIG S. ESQ.

Other Attorneys

MKRTCHYAN KARINE

5 More Attorneys Available

 

Court Documents

Legacy Document

7/11/2018: Legacy Document

NOTICE OF TENTATIVE RULING PURSUANT TO DEFENDANTS DEMURRER FINDING THIS MATTER TO BE COMPLICATED AND NOTICE OF TRANSER

7/11/2018: NOTICE OF TENTATIVE RULING PURSUANT TO DEFENDANTS DEMURRER FINDING THIS MATTER TO BE COMPLICATED AND NOTICE OF TRANSER

Separate Statement

8/10/2018: Separate Statement

Separate Statement

8/16/2018: Separate Statement

Certificate of Mailing for

11/2/2018: Certificate of Mailing for

Case Management Statement

11/5/2018: Case Management Statement

Notice

11/19/2018: Notice

Declaration

1/29/2019: Declaration

Notice of Joinder

4/11/2019: Notice of Joinder

Motion to Deem RFA's Admitted

4/19/2019: Motion to Deem RFA's Admitted

Separate Statement

4/25/2019: Separate Statement

Opposition

5/6/2019: Opposition

Declaration

6/7/2019: Declaration

Declaration

6/14/2019: Declaration

Declaration

6/28/2019: Declaration

Notice

7/3/2019: Notice

DEFENDANT KATHLEEN M.MAKAREWICZ M.D.S ANSWER TO COMPLAINT

4/25/2018: DEFENDANT KATHLEEN M.MAKAREWICZ M.D.S ANSWER TO COMPLAINT

SUMMONS

1/22/2018: SUMMONS

151 More Documents Available

 

Docket Entries

  • 07/08/2019
  • at 08:30 AM in Department D; Status Conference (reMediation and Discovery) - Not Held - Advanced and Continued - by Court

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  • 07/05/2019
  • at 09:00 AM in Department D; Hearing on Motion for Summary Judgment (previously set on 4/19/19, on behalf of Defendant Providence St. Joseph Medical Cnter) - Not Held - Rescheduled by Party

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  • 07/05/2019
  • at 08:30 AM in Department D; Hearing on Motion to Compel (Motion to Compel Deposition of Plaintiff's CPA) - Not Held - Rescheduled by Party

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  • 07/03/2019
  • Reply (To Opposition); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/03/2019
  • Notice (of Continuance); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/03/2019
  • Objection (To Declarations In Support); Filed by JOHN A. KASHER M.D. (Defendant); DR. JAMES KAO (Defendant)

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  • 07/02/2019
  • at 08:30 AM in Department D; Non-Appearance Case Review (NON-APPEARANCE CASE MANAGEMENT ORDER CONTINUING CASE SET ON A ?DARK? DATE;) - Held

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  • 07/02/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review NON-APPEARANCE CASE MANAGEMENT ORD...) of 07/02/2019); Filed by Clerk

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  • 07/02/2019
  • Minute Order ( (Non-Appearance Case Review NON-APPEARANCE CASE MANAGEMENT ORD...)); Filed by Clerk

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  • 07/02/2019
  • Notice (of Entry of Judgment); Filed by KATHLEEN M. MAKAREWICSZ M.D. (Defendant)

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227 More Docket Entries
  • 04/02/2018
  • DEMAND FOR JURY TRIAL

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  • 02/22/2018
  • CIVIL DEPOSIT

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  • 02/22/2018
  • Receipt; Filed by Plaintiff/Petitioner

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  • 02/22/2018
  • Receipt (CIVIL DEPOSIT RE JURY FEES $150.00 ); Filed by Attorney for Plaintiff/Petitioner

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  • 01/22/2018
  • PLAINTIFF'S COMPLAINT FOR DAMAGES: (1) MEDICAL MALPRACTICE

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  • 01/22/2018
  • Summons (on Complaint)

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  • 01/22/2018
  • Complaint; Filed by JASON STEGER (Plaintiff)

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  • 01/22/2018
  • SUMMONS

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  • 01/22/2018
  • Complaint

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  • 01/22/2018
  • Civil Case Cover Sheet; Filed by JASON STEGER (Plaintiff)

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Tentative Rulings

Case Number: BC691050    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 12

Date: 1/17/20

Case No: BC 691050 Trial Date: March 16, 2020

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

MOTION TO PARTIALLY SET ASIDE JUDGMENT

[CCP § 473]

Moving Party: Plaintiff Jason Steger

Responding Party: Defendant Providence St. Joseph Medical Center

RELIEF REQUESTED:

Set aside judgment and enter an order vacating order granting summary judgment as to defendant CSJ Providence St. Joseph Medical Center

SUMMARY OF FACTS:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened, and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center. The motion was granted in a detailed minute order. The court found that the expert declaration submitted by moving defendant sufficiently established that the conduct of the hospital fell within the applicable standard of care, and nothing the hospital did caused or contributed to injury to plaintiff Steger, shifting the burden to plaintiff to raise triable issues of material fact. The court noted that in opposition to the motion, plaintiff had failed to submit any expert medical testimony at all, and that, although plaintiff had made argument in support of finding vicarious liability on the part of the hospital for the conduct of Dr. Kasher and Dr. Kao, plaintiff had failed to offer expert medical evidence establishing that these physicians fell below the standard of care or engaged in acts or omissions which were the medical cause of plaintiff’s injuries. The court ruled that defendant had submitted evidence sufficient to meet its initial burden on the lack of a breach and the absence of medical causation, and further ruled:

“This evidence is not disputed by plaintiff, who instead argues that moving defendants is [sic] responsible for the medical negligence of other defendants, without submitting any expert evidence on that alleged medical negligence. Without any competent expert evidence of negligence or medical causation, plaintiff will be unable to establish his only cause of action against the moving defendant.”

On October 25, 2019, the court heard a Motion for New Trial brought by plaintiff seeking a new trial of the matter, or, in the alternative, an order vacating the court’s order granting summary judgment. The motion was denied in a detailed minute order, including to the extent relief was sought under CCP § 473. After argument, the court denied the motion, “except that Denial of the Plaintiff Jason Steger’s Motion under Section 473(b) of the Code of Civil Procedure is DENIED without prejudice.”

Plaintiff now brings a motion under CCP § 473 (b).

ANALYSIS:

Plaintiff seeks relief under CCP § 473(b), specifically the following provision:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

The court had previously denied relief sought under this section in connection with the motion for new trial under CCP § 473 (b) as follows:

“Regardless of under what statutory theory relief is sought, the Amended Declaration of Blake J. Lindeman submitted with the moving papers does not include a sworn affidavit attesting to and accepting responsibility for any mistake, inadvertence, surprise or neglect, and the declaration does not set forth any facts which would support a finding that the failure to previously submit the subject declaration was a due to excusable neglect. The Second District in Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1402 reviewed the “reasonably prudent person standard” governing a determination of “excusable neglect” and concluded with respect to attorney conduct:

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”

Generale Bank, at 1400, quoting Garcia v. Hejmadi (1997, 2nd Dist.) 58 Cal.App.4th 674, 682-683.

The argument, unsupported by any evidence, appears to be that counsel did not believe an expert declaration was necessary under the circumstances, or any evidence establishing that the conduct of the purported ostensible agents would support the cause of action for medical malpractice against the moving defendant hospital. This evidence was required at the summary judgment motion because the Defendant Hospital’s expert witness declaration shifted the burden of proof as to professional negligence to the plaintiff. The hospital is entitled to a factual recitation of its alleged negligence and as to the other doctors who may have treated plaintiff that day. See Bushling, Jennings v. Palomer Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108. This contention is effectively an argument that counsel failed to properly advance an argument at the previous hearing, and, even if supported by evidence, would be insufficient to establish excusable neglect.”

Plaintiff now argues that relief is appropriate based on mistake, inadvertence, surprise or excusable neglect because plaintiff’s counsel’s firm mistakenly did not electronically file the Gazi Declaration with the other papers filed in opposition to the motion for summary judgment, as when the documents were uploaded on OneLegal by the firm, the prepared and ready to be filed Gazi Declaration was not included with one of the pdfs to be filed with the court. [Lindemann Decl. ¶ 4].

The opposition argues that the transcript of the previous hearing shows that the court permitted plaintiff to make this motion but required that a showing of something other than plaintiff making a strategic decision to “leapfrog” the expert declaration of the hospital and go right to ostensible agency, so any re-argument of such an error is improper. As noted above, the court has already determined that the argument that counsel believed and contends he did not need an expert declaration addressed to the physicians would not support a finding of “excusable” neglect, as it has been repeatedly conceded this was a strategic decision on the part of counsel.

This leaves the issue of whether the current showing with respect to the failure of the firm to transmit the declaration for filing constitutes the requisite “mistake, inadvertence, surprise, or excusable neglect,” to give rise to discretionary relief under the statute. Relief is not sought under the mandatory attorney fault provision.

The trial court’s granting or denial of relief under the discretionary provision is reviewed for abuse of discretion. State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610. It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.

A party seeking relief under section 473 on the ground of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief. Cochran v. Linn (1984) 159 Cal.App.3d 245, 252.

The declaration here states:

“3. The declaration of Dr. Tawid R. Gazi (Gazi Decl) was meant to be filed with the ruling finding there was a dispute of fact as to Kasher and Kao’s conduct, but it was inadvertently not filed.

4. The judgment was entered without the presentation of evidence by Plaintiff Steger as

a direct and causal result of mistake, inadvertence, excusable neglect, surprise. My firm mistakenly did not electronically file the Gazi decl. As a clerical/secretarial error with OneLegal, even though it was ready to submit on the date the opposition was due to the motion, and even though other filings were made on that same date in opposition to the motion for summary judgment. When documents were uploaded on OneLegal by my firm, the prepared and ready to be filed Gazi decl. was not included with one of the pdf’s to be filed with the court. Thus, it was not filed in opposition to CSJ’s motion for summary judgment and was not considered. Later, a mistake of law was made as well. I determined at the hearing that the expert declaration was not necessary. However, the court found an expert declaration was necessary to address the Van Dam declaration. The mistake of law is that no declaration was required because Dr. Van Dam opined as to very limited matters, and I believed as a matter of law, this was not necessary to rebut when he did not even speak of the errors and omissions of Dr. Kasher and Dr. Kao.”

[Lindemann Decl. ¶¶ 3, 4].

The mistake now urged here appears to be a combination of the failure to transmit for filing an expert declaration and counsel’s later determination that the expert declaration was not necessary. As discussed above, the court has already determined that counsel taking the position that an expert declaration concerning the conduct of Dr. Kao and Dr. Kasher was not necessary is not excusable neglect. While it might ordinarily appear transmission failures with respect to the filing of documents in connection with a motion for summary judgment could constitute mistake or excusable neglect, it is not clear why after months of litigating this issue, counsel is now for the first time claiming that the declaration was intended to be filed. In addition, the moving papers do not submit the declaration that was intended to be filed, but mistakenly omitted, but a declaration of Dr. Gazi dated November 5, 2019, when the motion was in fact heard on September 6, 2019. This leaves the court without the declaration which was purportedly meant to be filed but mistakenly not filed to review and consider. The opposition indicates that the court has considered a previous declaration, which is alluded to in the submitted transcript of the October 25, 2019 hearing. [See Ex. B, pp. 6-7].

It appears from the file that on the date of the hearing on the summary judgment motion, on September 6, 2019, the declaration of Dr. Gazi which was submitted in support of the opposition to the motion of Dr. Kasher and Kao in July of 2019 was submitted to the court, along with a “Request” that the court consider the declaration. That declaration is not resubmitted here, likely because the court has reviewed it several times, and found that it did not directly address any conduct of those physicians in connection with the hospital stay for which the hospital is alleged to be responsible. The new declaration, dated November 5, 2019, would have been extremely untimely. This failure to submit the declaration which was meant to have been filed calls into question the credibility of the argument that there was a mistake in not transmitting that document for filing with the opposition.

The “Request” to consider the Gazi Declaration filed September 6, 2019, includes a declaration of counsel Lindemann in which he states:

“Defendants CSJ has not provided any expert declaration concerning the level of care provided by Dr. John Kasher and Dr. James Kao. Thus, we did not re-file the Gazi Declaration in connection with the CSJ motion for summary judgment, and inadvertently did not include it in the Opposition.”

[Request, filed 9/6/19, Lindemann Decl. ¶2, emphasis in original].

This declaration represents that “Thus,” a decision was made to “not re-file the Gazi Declaration,” which is consistent with the position plaintiff has asserted all along.

The file also shows that the papers which were filed in opposition to the motion for summary judgment did not refer to the Gazi Declaration at all, making it unlikely that it was in fact intended to be filed but inadvertently not filed. It does not appear that the declaration was ever intended to be relied upon as direct evidence.

In addition, if the court views the July 2019 declaration as the declaration which was inadvertently not transmitted to the court with the opposition, that declaration, as previously noted by the court, does not include reference to any specific conduct by the physicians which occurred during the hospitalization at issue which is sought to be imputed to the hospital.

The basis for relief now pursued, that the declaration was intended to be filed, but was inadvertently not filed, is not credible, and, even if the court finds the story credible, plaintiff has not submitted the declaration which was not filed for the court’s consideration as to its sufficiency. The motion accordingly is denied.

RULING:

Plaintiff Jason Steger’s Motion and Renewed Motion to Partially Set Aside Judgment is DENIED.

The court has reviewed the materials submitted, as well as the file in this matter, and finds that the representation that the Dr. Gazi Declaration was intended to be filed but inadvertently was not filed with the papers filed in opposition to the motion for summary judgment is not credible, in light of the representations made to this court previously and again in the moving papers concerning the deliberate decision to rely on other evidence and argument, and of the failure to reference that declaration in the previous opposition papers. The court cannot find that plaintiff has met his burden of establishing that the failure to submit the declaration was due to mistake, inadvertence, surprise, or excusable neglect.

Even if the court were to find that plaintiff had established that the failure to submit the declaration was due to mistake, inadvertence, surprise, or excusable neglect, plaintiff has not submitted with this motion a copy of the declaration which was purportedly intended to be but was not filed, as the Gazi Declaration submitted is dated November 5, 2019, long after the hearing on the motion for summary judgment. The court accordingly cannot evaluate if any declaration intended to have been filed includes material which raises triable issues of material fact.

Case Number: BC691050    Hearing Date: October 25, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 21

Date: 10/25/19

Case No: BC 691050 Trial Date: March 16, 2020

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al.

MOTION FOR NEW TRIAL

[CCP § 657]

Moving Party: Plaintiff Jason Steger

Responding Party: Defendant Providence St. Joseph Medical Center

RELIEF REQUESTED:

New trial or in the alternative an order vacating the court’s order granting summary judgment

SUMMARY OF FACTS:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas. Plaintiff alleges that after the procedure, his pain worsened and he went into septic shock. Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed.

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center. The motion was granted in a detailed minute order. The court found that the expert declaration submitted by moving defendant sufficiently established that the conduct of the hospital fell within the applicable standard of care, and nothing the hospital did caused or contributed to injury to plaintiff Steger, shifting the burden to plaintiff to raise triable issues of material fact. The court noted that in opposition to the motion, plaintiff had failed to submit any expert medical testimony at all, and that, although plaintiff had made argument in support of finding vicarious liability on the part of the hospital for the conduct of Dr. Kasher and Dr. Kao, plaintiff had failed to offer expert medical evidence establishing that these physicians fell below the standard of care or engaged in acts or omissions which were the medical cause of plaintiff’s injuries. The court ruled that defendant had submitted evidence sufficient to meet its initial burden on the lack of a breach and the absence of medical causation, and further ruled:

“This evidence is not disputed by plaintiff, who instead argues that moving defendants is [sic] responsible for the medical negligence of other defendants, without submitting any expert evidence on that alleged medical negligence. Without any competent expert evidence of negligence or medical causation, plaintiff will be unable to establish his only cause of action against the moving defendant.”

RULING:

Plaintiff Jason Steger’s Motion for New Trial is DENIED.

CCP section 657 provides that a verdict may be vacated, and any other decision may be modified or vacated, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved for various causes. It is not clear from the moving papers on what specific statutory ground of the many listed in the notice of intention relief is actually sought. The motion appears to seek that the court find that the evidence submitted at the previous hearing was insufficient to support the court’s order, or that there was an error in law. The motion essentially argues that the court did not make a separate analysis and finding with respect to the issue of whether triable issues of fact had been raised with respect to whether Dr. Kasher and Dr. Kao were the ostensible agents of the moving defendant, so that the Hospital would be vicariously responsible for their conduct in connection with plaintiff’s sole cause of action for medical negligence.

As an initial matter, the court agrees with plaintiff that the court has the authority to consider a motion for a new trial in connection with the granting by the court of summary judgment:

“Aguilar moved the superior court for a new trial following its order granting the petroleum companies summary judgment. A motion for a new trial is appropriate following an order granting summary judgment. (Kohan v. Cohan (1988) 204 Cal.App.3d 915, 919, fn. 4, 251 Cal.Rptr. 570; Scott v. Farrar (1983) 139 Cal.App.3d 462, 467, 188 Cal.Rptr. 823; Green v. Del–Camp Investments, Inc. (1961) 193 Cal.App.2d 479, 481, 14 Cal.Rptr. 420; see Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 643–644, fn. 4, 69 Cal.Rptr.2d 296; Malo v. Willis (1981) 126 Cal.App.3d 543, 546, fn. 2, 178 Cal.Rptr. 774; cf. Carney v. Simmonds (1957) 49 Cal.2d 84, 87–91, 315 P.2d 305 [holding that a motion for a new trial is appropriate following an order granting judgment on the pleadings].) This is so, even though, strictly speaking, “summary judgment ... is a determination that there shall be no trial at all.” (Green v. Del–Camp Investments, Inc., supra, 193 Cal.App.2d at p. 481, 14 Cal.Rptr. 420.).”

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.

The court does not find that grounds have been established warranting a new trial here.

To establish plaintiff’s cause of action for medical negligence against the moving defendant hospital, plaintiff must plead and prove:

1) Defendant’s duty to insure the competency of its medical staff

2) Duty to evaluate the quality of medical treatment rendered on its premises

3) Breach of defendant hospital’s duty in that hospital agent negligently cared for hospital patient

4) The breach as the proximate or legal cause of plaintiff’s injuries; and

5) Damages.

Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 347.

At the previous hearing, an expert declaration was submitted by defendant which established based on a detailed showing the opinion of the medical expert that, “the care and treatment rendered to Jason Steger by Providence Saint Joseph Medical Center, and its employees, complied with the standard of care in the community.” [Ex. C, Van Dam Decl. ¶ 5]. The expert declaration also expressed the expert’s opinion, “that, to a reasonable degree of medical probability, nothing Providence Saint Joseph Medical Center, or its employees, did or failed to do caused or contributed to injury to Mr. Steger.” [Ex. C, Van Dam Decl. ¶ 9].

The court found this sufficient to establish that plaintiff would be unable to establish the essential elements of breach of the standard of care or medical causation.

Plaintiff in opposition, while raising the issue of ostensible agency with respect to the physician defendants, did not meet the burden of establishing that the conduct of those parties, regardless of their status as employees or ostensible agents, and even if the conduct were imputed to the hospital, fell below the standard of care or was a medical cause of plaintiff’s alleged harm. The court under such circumstances, was not obligated to make a ruling on the issue of the existence of an agency. Consequently, the Court made no ruling on ostensible agency and makes no such ruling now.

Defendant relies on Burbank v. National Casualty Company (1941) 43 Cal.App.2d 773, in which the court of appeal held, “Agency is a fact, the burden of proving which rests upon the party affirming its existence." (2 C. J., p. 923, sec. 662.).” Burbank, at 781. The court views this burden, particularly where the burden has shifted on summary judgment, to extend in this medical malpractice action to raising triable issues of material fact with respect to whether the conduct of those purported agents constituted medical malpractice based on competent medical evidence. That burden was not met by plaintiff here and summary judgment was appropriately granted.

The motion appears to seek to now submit an expert declaration for the court’s consideration, pursuant to CCP § 473. However, it is not clear under what theory this declaration, not offered at the previous hearing, can now be considered by the court. Moreover, it does not appear that plaintiff submitted any new doctor expert witness declaration for the motion for new trial, but plaintiff is instead relying on plaintiff’s prior expert declaration signed June 18, 2019. There is no clear reference in this declaration to what happened on the day in question at the emergency room of Providence St. Joseph’s Medical Center. The moving papers do not make clear under what provision of CCP § 473 relief is sought, and on what basis.

CCP § 473(b) provides, in pertinent part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect….

Nothwithstanding any other requirement of this section, the court shall, whenever an application is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any (1) resulting default entered by the clerk against his or her client and which will result in entry of default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not, in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.”

Regardless of under what statutory theory relief is sought, the Amended Declaration of Blake J. Lindeman submitted with the moving papers does not include a sworn affidavit attesting to and accepting responsibility for any mistake, inadvertence, surprise or neglect, and the declaration does not set forth any facts which would support a finding that the failure to previously submit the subject declaration was a due to excusable neglect. The Second District in Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1402 reviewed the “reasonably prudent person standard” governing a determination of “excusable neglect” and concluded with respect to attorney conduct:

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”

Generale Bank, at 1400, quoting Garcia v. Hejmadi (1997, 2nd Dist.) 58 Cal.App.4th 674, 682-683.

The argument, unsupported by any evidence, appears to be that plaintiff’s counsel did not believe an expert declaration was necessary under the circumstances to oppose the hospital’s Motion for Summary Judgment, or that any evidence establishing that the conduct of the purported ostensible agents would be required to support the cause of action for medical malpractice against the moving defendant hospital. This evidence was required at the summary judgment motion because the Defendant Hospital’s expert witness declaration shifted the burden of proof as to professional negligence to the plaintiff. The hospital is entitled to a factual recitation of its alleged negligence and as to the other doctors who may have treated the plaintiff that day. See Bushling, Jennings v. Palomer Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117-1118. This contention is effectively an argument that counsel failed to properly advance an argument at the previous hearing, and, even if supported by evidence, would be insufficient to establish excusable neglect.