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This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 10:16:54 (UTC).

JOSEFINA ROBLES VS ST FRANCIS MEDICAL CENTER ET AL

Case Summary

On 03/05/2018 JOSEFINA ROBLES filed a Personal Injury - Medical Malpractice lawsuit against ST FRANCIS MEDICAL CENTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MAURICE A. LEITER, DENNIS J. LANDIN and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7012

  • Filing Date:

    03/05/2018

  • 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 Judges

MAURICE A. LEITER

DENNIS J. LANDIN

ELAINE LU

 

Party Details

Plaintiff and Petitioner

ROBLES JOSEFINA BY AND THROUGH HER

Defendants and Respondents

INTERVENTIONAL ANESTHESIA & PAIN

LANDMARK ANESTHESIA MEDICAL GROUP

NGUYEN-CLARK HANH M.D.

ST. FRANCIS MEDICAL CENTER

ALLEN GWEN M. M.D.

ST. FRANCIS MEDICAL CENTER GAS INC.

MALEK SABRI M.D.

SHAHIDI MASSOUD M.D.

PEDIATRIC AND FAMILY MEDICAL CENTER INC.

GARDENA WOMEN'S CENTER INC.

DUROUSSEAU WILBURN M.D.

GWEN ALLEN M.D. INC.

EISNER PEDIATRIC AND FAMILY MEDICAL

ALLEN GWEN M. M.D

ST. FRANCISC MEDICAL CENTER

ST. FRANCISC MEDICAL CENTER GAS INC.

GWEN M. ALLEN M.D. INC. GARDENA WOMEN'S CENTER

DUROUSSEAU WILLBURN M.D.

Other

EVAN B. GILEAD

20 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MEDINA YOLANDA M. ESQ.

GIOMMONI MARIO R.

WEISSMAN STUART J.

LECLAIR-GIBSON MALENA R.

GILEAD EVAN B.

Defendant and Respondent Attorneys

MAIZEL SAMUEL R.

GEIBEL MICHAEL BENJAMIN

LA FOLLETTE JOHNSON DE HAAS FESLER

CURLEY ARTHUR WALTER

REBACK ROBERT CARL

SCHMID & VOILES

LAMBIRTH DENA

REBACK MCANDREWS & BLESSE LLP

BRADFORD THOMAS ROBERT

MAYER PATRICK WILLIAM

OZERAN DAVID J.

BRADFORD THOMAS R. ESQ.

WEISS DAVID JAY

5 More Attorneys Available

 

Court Documents

Motion for Summary Judgment

7/3/2019: Motion for Summary Judgment

CIVIL DEPOSIT

5/11/2018: CIVIL DEPOSIT

Application to be Admitted Pro Hac Vice

5/24/2018: Application to be Admitted Pro Hac Vice

Application to be Admitted Pro Hac Vice

5/24/2018: Application to be Admitted Pro Hac Vice

ANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

5/24/2018: ANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

Proof of Service (not Summons and Complaint)

5/31/2018: Proof of Service (not Summons and Complaint)

SUPPLEMENTAL DECLARATION OF YOLANDA M. MEDINA IN SUPPORT OF MARIO GIOMMONIS PRO HAC VICE APPLICATION

6/28/2018: SUPPLEMENTAL DECLARATION OF YOLANDA M. MEDINA IN SUPPORT OF MARIO GIOMMONIS PRO HAC VICE APPLICATION

SUPPLEMENTAL DECLARATION OF YOLANDA M. MEDINA IN SUPPORT OF KIMBERLY L. BOLDT'S PRO HAC VICE APPLICATION

6/28/2018: SUPPLEMENTAL DECLARATION OF YOLANDA M. MEDINA IN SUPPORT OF KIMBERLY L. BOLDT'S PRO HAC VICE APPLICATION

PROOF OF SERVICE SUMMONS

6/28/2018: PROOF OF SERVICE SUMMONS

Legacy Document

6/28/2018: Legacy Document

Legacy Document

6/28/2018: Legacy Document

DECLARATION OF DAVID OZERAN FOR EXTENSION OF TIME TO FILE DEMURRER AND MOTION TO STRIKE (CCP 43041)

7/17/2018: DECLARATION OF DAVID OZERAN FOR EXTENSION OF TIME TO FILE DEMURRER AND MOTION TO STRIKE (CCP 43041)

Notice of Motion

8/17/2018: Notice of Motion

Case Management Statement

9/7/2018: Case Management Statement

Notice of Stay of Proceedings (Bankruptcy)

9/10/2018: Notice of Stay of Proceedings (Bankruptcy)

Minute Order

11/9/2018: Minute Order

Notice of Ruling

5/15/2019: Notice of Ruling

Answer

6/12/2019: Answer

267 More Documents Available

 

Docket Entries

  • 01/27/2020
  • Hearingat 09:30 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Jury Trial

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  • 01/21/2020
  • Hearingat 09:30 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Final Status Conference

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  • 09/26/2019
  • Hearingat 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Hearing on Motion for Summary Judgment

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  • 09/19/2019
  • Hearingat 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Hearing on Motion for Summary Judgment

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  • 08/27/2019
  • Hearingat 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Hearing on Demurrer - without Motion to Strike

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  • 08/14/2019
  • DocketOpposition (to St. Francis Medical Centers Demurrer to Second Amended Complaint); Filed by JOSEFINA ROBLES (Plaintiff); Robles, Josefina by and through her (Plaintiff); SERGIO ROBLES (Plaintiff)

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  • 08/07/2019
  • DocketNotice (of Continuance of Motion for Summary Judgment); Filed by MASSOUD M.D. SHAHIDI (Defendant)

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  • 07/30/2019
  • Docketat 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 07/23/2019
  • Docketat 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 07/16/2019
  • DocketRequest for Dismissal; Filed by JOSEFINA ROBLES (Plaintiff); Robles, Josefina by and through her (Plaintiff); SERGIO ROBLES (Plaintiff) et al.

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378 More Docket Entries
  • 04/06/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 03/27/2018
  • DocketApplication-Miscellaneous (FOR JOSEFINA ROBLES GUARDIAN AD LITEM(COPY) ); Filed by Attorney for Pltf/Petnr

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  • 03/27/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 03/27/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL EX PARTE

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  • 03/27/2018
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 03/05/2018
  • DocketComplaint

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  • 03/05/2018
  • DocketComplaint; Filed by JOSEFINA ROBLES (Plaintiff); Robles, Josefina by and through her (Plaintiff); SERGIO ROBLES (Plaintiff)

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  • 03/05/2018
  • DocketCOMPLAINT FOR DAMAGES 1. MEDICAL MALPRACTICE ;ETC

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  • 03/05/2018
  • DocketSUMMONS

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  • 03/05/2018
  • DocketCivil Case Cover Sheet (and civil case cover sheet addendum and statement of location)

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Tentative Rulings

Case Number: BC697012    Hearing Date: December 01, 2020    Dept: A

# 12. Josefina Robles v. St. Francis Medical Center, et al.

Case No.: BC697012

Matter on calendar for: Motion for Determination of Good Faith Settlement

Tentative ruling:

  1. Background

    This is a medical malpractice claim. Plaintiff Josefina Robles appears through her conservator and father, Sergio Robles. Defendants are various healthcare providers. The events took place at the premises of Defendant St. Francis Medical Center (“St. Francis”) and involve the improper administration of epidural anesthesia and airway protection leading to Robles’ severe brain injury.

    The Second Amended Complaint (“SAC”) alleges the following causes of action:

      1. Medical Malpractice

      2. Negligent Concealment/Negligent Misrepresentation

      3. Negligent Infliction of Emotional Distress

      4. Medical Battery.

Plaintiff, a person with a disability, now petitions for Court approval of her settlement, by and through her guardian ad litem and conservator, with Defendant Landmark Anesthesia Medical Group (“Landmark”). The petition is opposed by St. Francis.

For the reasons set forth below, the Court grants the motion in part.

  1. Standard

Code of Civil Procedure § 877.6(b) allows a party to request determination by the Court that a settlement was made in good faith. A determination of good faith bars “joint tortfeasors or co-obligors from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (C.C.P., § 877.6(c).) A party asserting bad faith has the burden of proof on the issue. (C.C.P., § 877.6(d).)

“The determination as to whether a settlement is in good faith is a matter left to the discretion of the trial court. [Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502]” (Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 909.) In reaching the determination, the court weighs multiple factors that include: “a rough approximation of the plaintiff’s total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, a recognition that a settlor should pay less in settlement than if found liable after trial.” (Tech-Bilt, supra, 38 Cal.3d at 499.) “Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants.” (Ibid.)

  1. Analysis

    Landmark seeks to settle with Plaintiff in the amount of $20,000. Landmark also seeks a court order barring indemnity claims of party and nonparty joint tortfeasors. (Mot., pgs. 13-15, Exh. A; Haskin Decl., ¶ 4.)

    St. Francis opposes Landmark’s request for a court order barring indemnity claims on ground that St. Francis and Landmark have a written agreement for Landmark to defend, indemnify, and hold harmless St. Francis. (Opp., pgs. 3-6; Mot., Exh. B.)

    First, the Court examines the indemnity issue.

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (C.C.P § 877.6(c).)

In analyzing this section, the California Supreme Court has held “that under section 877.6, subdivision (c), a good faith settlement relieves a settling defendant from a further claim for indemnity based on an implied contractual indemnity theory.” (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1031.) The California Supreme Court further held that “[o]ur conclusion that a good faith settlement bars a claim for implied contractual indemnity is not at all inconsistent with the principle that such a settlement would not preclude an indemnity action based on express indemnity agreement.” (Id. at 1032.) “[T]he law permits people to voluntarily order their affairs in a manner agreeable to them and equity rarely interferes with a contract knowledgeably executed.” (C. L. Peck Contractors v. Superior Court (1984) 159 Cal.App.3d 828, 834.)

Landmark and St. Francis executed a Professional and Administrative Services Agreement. (Mot., Exh. B.) According to that agreement, “[Landmark] shall defend, indemnify, and hold harmless [St. Francis], its members, directors, officers, employees, and agents from all claims, damages, costs, and expenses…due to negligence or willful acts or omissions of [Landmark]… arising out of, or in connection with, the performance of this Agreement.” (Id. at pg. 18, ¶ 5.2.1.) The agreement contains a clause requiring St. Francis to indemnify Landmark. (Id. at pg. 18, ¶ 5.2.2.) The parties’ agreement, then, contains an express indemnity clause.

The Court finds that the settlement between Plaintiff and Landmark does not bar any indemnity claim between Landmark and St. Francis based on this agreement. The Court does not in this Order address the merits of any such indemnity claim.

Second, as to the settlement between Plaintiff and Landmark, the terms of the agreement are unopposed. Only when the application is contested is it “incumbent upon the trial court to consider and weigh the Tech-Bilt factors.” (City of Grant Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Having reviewed the settlement terms and absent an opposition, the Court finds the settlement is in good faith.

  1. Ruling

    The settlement between Plaintiff and Landmark is in good faith. St. Francis may proceed with any indemnity or contribution claim against Landmark pursuant to their written agreement. All other indemnity and contribution claims against Landmark are barred.

    Next dates:

    Notice:

Case Number: BC697012    Hearing Date: November 17, 2020    Dept: A

# 8. Josefina Robles v. St. Francis Medical Center, et al.

Case No.: BC697012

Matter on calendar for: petition for minor’s compromise (person with a disability)

Tentative ruling:

  1. Background

This is a medical malpractice claim. Plaintiff Josefina Robles appears in this action through her conservator and father, Sergio Robles. Defendants are various healthcare providers. The events took place at the premises of Defendant St. Francis Medical Center and involve the improper administration of epidural anesthesia and airway protection leading to Robles’ severe brain injury.  

The Second Amended Complaint (“SAC”) alleges the following causes of action: 

  1. Medical Malpractice;

  2. Negligent Concealment/Negligent Misrepresentation;

  3. Negligent Infliction of Emotional Distress;

  4. Medical Battery. 

Plaintiff, a person with a disability, now petitions for Court approval of her settlement, by and through her guardian ad litem and conservator. The petition is unopposed.

For the reasons set forth below, the Court grants the petition.

  1. Standard

Court approval is required to establish an enforceable settlement of a minor’s claim. (Prob. Code, §§ 2504, 3500, 3600, et seq.; C.C.P., § 372.) Indeed, until a petition for such approval is granted by the court, there is no final settlement, and any prior settlement agreement is voidable. (Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1603–1605.)

California Rules of Court, Rule 7.950, et seq., governs the procedures for Court approval of a minor’s compromise under the Probate Code. The Application forms must properly state the age and sex of the minors, the nature and extent of the injuries, and the facts and circumstances out of which the injuries arose. Plaintiff’s counsel must disclose his interest. (Ibid.)

Under California Rules of Court, Rule 7.955(a)(1), the Court “must use a reasonable fee standard when approving and allowing the amount of attorney’s fees payable from money or property paid or to be paid for the benefit of a minor…” Also, the court must give weight to the terms of any existing representation agreement. (See CRC, Rule 7.955(a)(2).) Other non-exclusive factors to consider include: (1) the fact that a minor is involved, and her particular circumstances; (2) the length and nature of representation; and (3) the time and labor required. (See CRC, Rule 7.955(b)(1–14).)

  1. Analysis

    The Court notes that petitioner has complied with California Rules of Court Rule 7.950. The petition indicates that all medical costs and attorney’s fees and costs have been paid by the prior settlement entered into with Defendant St. Francis Medical Center. Petitioner attaches all required documents including the required medical records and prior approval of the special needs trust on September 22, 2020.

  2. Ruling

    The petition to approve the minor’s compromise (person with a disability) is granted.

    Next dates:

    Notice:

Case Number: BC697012    Hearing Date: September 22, 2020    Dept: A

#8. Josefina Robles v. St. Francis Medical Center, et al.

Case No.: BC697012

Matter on calendar for: Determination of good faith settlement; petition for approval of minor’s trust; petition for approval of special needs trust

Tentative ruling:

  1. Background

    Plaintiff Josefina Robles appears in this medical malpractice action through her conservator and father, Sergio Robles. Defendants are various healthcare providers.

    Defendant St. Francis Medical Center has reached a settlement with Robles. It now moves for a determination of good faith and for approval of two trusts: (1) a Statutory Minor’s Trust and (2) a Special Needs Trust.

  2. Determination of good faith

    1. Standard

Code of Civil Procedure § 877.6(b) allows a party to request determination by the court that a settlement was made in good faith. A determination of good faith bars “joint tortfeasors or co-obligors from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (C.C.P., § 877.6(c).) A party asserting bad faith has the burden of proof on the issue. (C.C.P., § 877.6(d).)

“The determination as to whether a settlement is in good faith is a matter left to the discretion of the trial court. [Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502]” (Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 909.) In reaching the determination, the court weighs multiple factors that include: “a rough approximation of the plaintiff’s total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, a recognition that a settlor should pay less in settlement than if found liable after trial.” (Tech-Bilt, supra, 38 Cal.3d at 499.) “Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants.” (Ibid.)

    1. Analysis

This is an uncontested application for determination of good-faith settlement. Only when the application is contested is it “incumbent upon the trial court to consider and weigh the Tech-Bilt factors.” (City of Grant Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Having reviewed the settlement terms and absent an opposition the Court finds the settlement is in good faith.

The motion for determination of good faith settlement is granted.

  1. Trusts

    Pursuant to Local Rule 4.115(c), “[w]hen the settlement proposes the establishment of a special needs trust, minor’s trust, or other trust as provided in Probate Code sections 3600–3612, the terms of the proposed trust must be reviewed by the Probate Division.” (Super. Ct. L.A. County, Local Rules, Rule 4.115(c).)

    The Probate Department has now reviewed both proposed trusts and has found them to be in order.

    The Court sets the following dates:

  1. Ruling

    The motion for determination of good faith is granted.

    The motions for approval of a minor’s trust and special needs trust are granted.

Next dates:

Notice:

Case Number: BC697012    Hearing Date: August 27, 2020    Dept: A

#11. Josefina Robles v. St. Francis Medical Center, et al.

Case No.: BC697012

Matter on calendar for: Determination of good faith settlement; petition for approval of minor’s trust; petition for approval of special needs trust

Tentative ruling:

  1. Background

    Plaintiff Josefina Robles appears in this medical malpractice action through her conservator and father, Sergio Robles. Defendants are various healthcare providers.

    Defendant St. Francis Medical Center has reached a settlement with Robles. It now moves for a determination of good faith and for approval of two trusts: (1) a Statutory Minor’s Trust and (2) a Special Needs Trust.

    The Statutory Minor’s Trust concerns Humberto Garcia, Jr., who is three years old. Josefina Robles suffered a catastrophic brain injury while giving birth to Humberto Garcia, Jr. Currently there is no Guardianship of the Estate for Humberto Garcia, Jr.

    Pursuant to Local Rule 4.115(c), “[w]hen the settlement proposes the establishment of a special needs trust, minor’s trust, or other trust as provided in Probate Code sections 3600–3612, the terms of the proposed trust must be reviewed by the Probate Division.” (Super. Ct. L.A. County, Local Rules, Rule 4.115(c).)

    The Probate Department has reviewed the Statutory Minor’s Trust but requires additional time to review the Special Needs Trust. Accordingly, the Court will continue this matter to October 29, 2020 at 9:00.

The Court notes that there are two deficiencies in the Statutory Minor’s Trust: (1) Humberto Garcia is the minor’s father but there is no order appointing him as Guardian Ad Litem. He currently lacks standing to establish a Statutory Minor’s Trust; and (2) proposed Trustee MassMutual Trust Company’s fee schedule must be submitted to the Court for evaluation pursuant to California Rules of Court, Rule 7.903(c)(8). These items must be cured to allow the Probate Division to complete its review.

  1. Ruling

    The Court continues this matter to October 29, 2020 at 9:00 am.

Case Number: BC697012    Hearing Date: February 27, 2020    Dept: A

# 8. Josefina Robles v. St. Francis Medical Center, et al.

Case No.: BC697012

Matter on calendar for: Motion for Summary Judgment

Tentative ruling:

  1. Background

    This is a medical malpractice claim. Plaintiff Josefina Robles appears in this action through her conservator and father, Sergio Robles. Defendants are various healthcare providers. The events took place at the premises of Defendant St. Francis Medical Center and involve the improper administration of epidural anesthesia and airway protection leading to Robles’ severe brain injury.

    The Second Amended Complaint (“SAC”) alleges the following causes of action:

  1. Medical Malpractice;

  2. Negligent Concealment/Negligent Misrepresentation;

  3. Negligent Infliction of Emotional Distress;

  4. Medical Battery

    Defendant St. Francis Medical Center now moves for summary adjudication as to the fourth cause of action. Defendants Sabri Malek, M.D., and Interventional Anesthesia & Pain Management Clinic, Inc., join in the motion. Plaintiff has filed an opposition.

    For the reasons set forth below, the Court denies the motions for summary adjudication.

  1. Standard

A “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.” (C.C.P., § 437c(c).) "A moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact. [Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 178–179.]" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)

  1. Analysis

    1. Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (C.C.P., § 437c(q).) Unless otherwise specified below, the Court overrules the parties’ objections.

    1. Medical Battery | Spinal Anesthesia and Consent

      1. Defendants’ Initial Burden

        Defendant argues that it cannot be held liable for medical battery because (1) Plaintiff consented to spinal anesthesia, and (2) Defendant Malek’s action in administering the spinal anesthesia cannot be attributed to Defendant St. Francis on an agency theory.

The elements of a medical battery are: (1) that the defendant performed a medical procedure without the plaintiff’s consent; or that the plaintiff consented to one medical procedure, but defendant performed a substantially different procedure; (2) that plaintiff was harmed; and (3) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI, 530A.)

Defendants provide the following pertinent evidence (citations are to the evidence in Defendant St. Francis’s papers):

Defendants’ evidence meets their prima facie burden of showing no triable issue of material fact as to medical battery because it shows that Plaintiff gave her consent to the procedure.

      1. Plaintiff’s Burden

Plaintiff provides the following pertinent evidence:

Plaintiff’s evidence suggests that the spinal anesthesia (the spinal block procedure) is a complex procedure that requires its own consent form. This issue turns on the interpretation of the consent forms. When the meaning of the contract is disputed, “[t]he interpretation . . . involves a two-step process: First the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the language is ‘reasonably susceptible’ to the interpretation urged by [a] party. [Citation.] [Citation.]” (Wolf v. Superior Court (2004) 114 Cal. App. 4th 1343, 1351.) If the language is reasonably susceptible to the interpretation, the extrinsic evidence is admitted to interpret the contract. (Ibid.) The determination as to whether an ambiguity exists is a question of law. (Ibid.) If no competent parol evidence is admitted or the competent parol evidence is not in conflict, resolving the ambiguity is also a question of law. (Id. at 1351; Winet v. Price (1992) 4 Cal. App. 4th 1159,1165.)) “However, where the parol evidence is in conflict, the trial court’s resolution of that conflict is a question of fact . . . .” (Wolf, supra, 114 Cal. App. 4th at 1351.)

Although Defendant’s reply argues that this is a matter of informed consent, which is a negligence issue, versus medical battery, what Dr. Allen’s and the Administrative Manual suggest is that certain procedures are not encompassed by the general term “anesthesia” included in every consent form. An example is that Plaintiff was asked to sign a consent form for an epidural, which is arguably another anesthetic procedure, making that form redundant. Regardless, the result is two reasonable interpretations of the consent forms, with extrinsic evidence, notably Dr. Allen’s testimony, that suggests the forms were not meant to include spinal block procedures in the general term “anesthesia.” This creates a triable issue of material fact as to whether the forms used here constituted consent.

Defendant Malek includes with his Reply the declarations of other doctors stating “anesthesia,” as used in the subject forms, encompasses a spinal block procedure. This, however, goes to the weight of the evidence as it underscores the contradiction with Dr. Allen’s testimony when viewed in a light most favorable to Plaintiff.

As to Defendant Malek’s declaration that he acquired verbal consent in the operating room, this too is contradicted by his earlier deposition testimony in which he stated Plaintiff did not give consent for the procedure. (Exh. 3, p. 37.) He explains this discrepancy by stating that he did not acquire Plaintiff’s consent while in the operating room because he had done so before she was brought into the operating room. (Exh. P, ¶ 3.) There is a factual dispute regarding Defendant Malek’s deposition testimony that Plaintiff’s consent was not acquired because it was an “emergency.” Whether there was an emergency, Dr. Allen’s deposition states the C-section was not an emergency until after the spinal block was administered. These issues are disputes as to facts to be determined by the jury, not the court.

Nor does the deposition testimony of nurse Ms. Ferguson alter this analysis, as her testimony, at best, would only mean that Defendant Malek purportedly obtained Plaintiff’s consent, which, as noted above, is directly contradicted by Defendant Malek’s own deposition testimony.

The Court denies Defendant Malek’s motion for summary adjudication as to the medical battery claim as there is a triable issue of material fact as to consent.

    1. Agency | The Hospital–Physician Relationship

Plaintiff’s argument that Defendant only moves as to ostensible agency, to the exclusion of actual agency, is unpersuasive. Defendant’s notice of intent to move for summary adjudication refers to vicarious liability as a whole, while Defendant’s memorandum includes argument that there is no agency relationship between Defendant and its physicians.

“An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.) “ ‘Before recovery can be had against the  principal for the acts of an ostensible agent, three requirements must be met: The person dealing with an agent must do so with a reasonable belief in the agent's authority, such belief must be generated by some act or neglect by the principal sought to be charged[,] and the person relying on the agent's apparent authority must not be negligent in holding that belief.’ [Citation.]” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038.)

The following excerpt from Markow summarizes the law on this issue:

“Where a patient seeks to hold a hospital liable for the negligence of a physician, the doctrine of ostensible agency is now commonly expressed as having two elements: ‘(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.’ [Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.] Generally, the first [ ] element is satisfied ‘when the hospital “holds itself out” to the public as a provider of care,’ ‘unless it gave the patient contrary notice.’ [Mejia, supra, 99 Cal.App.4th at 1453–1454.] Nonetheless, a hospital’s ‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.’ [Mejia, supra, 99 Cal.App.4th at 1454.]  Reliance upon an apparent agency is demonstrated ‘when the plaintiff “looks to” the hospital for services, rather than to an individual physician.’ [Mejia, supra, 99 Cal.App.4th at 1454.] Ultimately, ‘there is really only one relevant factual issue: whether the patient had reason to know that the physician was not an agent of the hospital.’ [Mejia, supra, 99 Cal.App.4th at 1453–1454.]” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038.)

Although the existence of an agency relationship is usually a question of fact, it ‘becomes a question of law when the facts can be viewed in only one way.’ [Citation.] In the physician-hospital-patient context, ostensible agency is a factual issue ‘[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician’ or received actual notice of the absence of any agency relationship. [Mejia, supra, 99 Cal.App.4th at 1454.]” ((Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1039.)

Defendant’s motion argues Plaintiff received actual notice of the absence of any agency relationship.

      1. Defendant’s Initial Burden

Defendant offers the following evidence:

Plaintiff argues that her signature on the admissions and consent forms cannot serve as conclusive proof of notice, citing the case of Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 640.) However, Whitlow was in the emergency room context, where the plaintiff was in extreme pain and suffering severe migraines. (Ibid.) Markow distinguished Whitlow, and the cases like it, on this point. (Markow, supra, 3 Cal.App.5th at 1041.) Defendant addresses this argument by including evidence that Plaintiff was not suffering an emergency when admitted.

Plaintiff cites to the District Court opinion in Calderon v. United States (E.D. Cal. 2018) 2018 WL 5906064, to argue that the language in the consent forms is misleading. Specifically, the form in Calderon stated: “ ‘procedures will be performed by the supervising physician or surgeon named above...together with associates and assistants including anesthesiologists, pathologists, and radiologists from the medical staff of Tulare District Hospital,’ ” alongside language stating that the physicians were not employees. (Id. at *8.) The court found this might lead an individual to the belief that the anesthesiologists or their assistants were employees, not independent contractors. While Calderon is not controlling in this case, it does illustrate that Plaintiff’s interpretation of the consent forms are reasonable. The provision at issue here appears to distinguish between anesthesiologists and anesthesia assistants, suggesting anesthesiologists are staff while their assistants are independent contractors. Interpreting the provision in a light most favorable to Plaintiff, this suggests that anesthesiologists, contrary to the admissions form, are employees of Defendant, and precludes a conclusive determination as to notice.

Accordingly, Plaintiff has demonstrated a triable issue of material fact as to question of ostensible agency as proscribed by Markow.

  1. Ruling

    The motions for summary adjudication are denied.

    Next dates:

    Notice:

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