LORETA S TUPARAN VS GOLDEN CROSS HEALTH CARE ET AL

Tentative Rulings

Case Number: BC655051    Hearing Date: October 16, 2020    Dept: A

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Tuparan v Golden Cross

Motion for Summary Judgment or Adjudication

ALLEGATIONS:

The instant action arises out of the alleged wrongful death of Nicolas Tuparan (“Decedent”) from the alleged improper acts of Defendants Golden Cross Healthcare a d/b/a of 1450 North Fair Oaks, LLC, and Golden Cross Care, Inc. (“Golden Cross”); Vida Arevalo (“Arevalo”); Vitas Hospice Services, LLC, and Vitas Healthcare Corp. of California (“Vitas”); Kindred Healthcare Operating, Inc., and KND Development 54, LLC d/b/a Kindred Hospital Riverside (“Kindred”); and Dr. Neil D. Katchman (“Katchman” and collectively the “Defendants”). Plaintiff Loreta Tuparan, brings the action individually, as successor in interest to Nicolas Tuparan, and as attorney-in-fact for Aurora Tuparan, Apolonia De Vera, Ellen Leonardo, Eva Rana, Esther Villanueva, Abimael Tuparan, Enrique Tuparan, Jemima De Leon, and Nicomedes Tuparan (collectively, the “Plaintiffs”). Plaintiffs claim that the Defendants provided medication to the Decedent against his stated will, would not assist him with hygiene, did not feed him properly, did not provide sufficient medical care, and as a result, Decedent died.

The operative Second Amended Complaint (“SAC”) was filed on January 16, 2018 and alleges six (6) causes of action for: (1) Willful Misconduct; (2) Negligence; (3) Elder Abuse; (4) Breach of Fiduciary Duty; (5) Wrongful Death; and (6) Malpractice.

PRESENTATION:

Katchman filed the motion for summary judgment on January 07, 2020, Plaintiffs filed an opposition on June 25, 2020, and Katchman filed a reply on July 02, 2020.

On September 25, 2020, the Court continued the instant motion to October 16, 2020 and directed Katchman to refile the motion within 10 days.

On October 01, 2020, Katchman refiled the motion for summary judgment.

RELIEF REQUESTED:

Katchman moves for summary judgment as to the SAC, or, in the alternative, summary adjudication as to the first, second, third, fourth, fifth, and sixth causes of action.

DISCUSSION:

Standard of Review – Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., ;437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ;437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., ;437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.

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Merits – First Cause of Action (Willful Misconduct) – California recognizes three different legal standards that apply regarding actions that sound in reckless or negligent conduct. First, ordinary negligence, which is “an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm.” (Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2d 863, 869.) Second is gross negligence, which “has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct,’” and which is generally a question of fact for the jury. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App. 4th 546, 555.) Finally, there is the standard of willful misconduct, which is distinguished even from the standard of gross negligence by “the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences.” (Hawaiian Pineapple Co. v. Industrial Acci. Com. (1953) 40 Cal. 2d 656, 662.)

In order to successfully plead a cause of action sounding in willful misconduct, the facts alleged need to create the inference that the conduct is willful, and not merely negligent. “[W]illfulness generally is marked by three characteristics: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal. 4th 714, 730; see also Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal. App. 5th 1118, 1140 (“In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Willful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.”).)

Katchman argues that the circumstances of the case are analogous to the facts in Carter, where the court sustained a demurrer as to a willful misconduct claim because the plaintiffs failed to show the defendant acted with a conscious or deliberate disregard of high probability of injury to the decedent. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 413.) Katchman further argues that no compensable damages exist for the willful misconduct claim.

In Carter, the court reasoned that, although the defendant failed to properly stock an emergency "crash cart" during the decedent's hospitalization, resulting in the defendant's unsuccessful efforts to locate a piece of intubation equipment in time to save the decedent's life, such failure constitutes only professional negligence and not willful misconduct, as the defendant actually treated or attempted to treat the decedent during his hospitalization. (Carter, supra, 198 Cal.App.4th at p. 412-13.) Katchman argues that, as in Carter, uncontroverted facts support that Katchman actually provided care to Decedent and attempted to address Decedent's bleeding episode. Plaintiff argues that Katchman had knowledge of Decedent's compromised medical condition and prior history of bleeding, and also knew that Kindred was not a proper facility for handling Decedent's emergency bleeding episode and intentionally and willfully withheld necessary treatment with actual knowledge that severe harm would occur by failing to immediately order that 911 be called upon learning of Decedent's bleeding episode. (Plaintiff's Exhibits, Ex. 58, p. 6; Plaintiff's Exhibits, Ex. 78 (Katchman Depo.), 184:11-186:6.) Plaintiff cites the Declaration of Anthony Scarcella to further argue that Katchman's conduct fell far below the standard of care.

The Court finds that Katchman sufficiently satisfies his prima facie burden to show that the willful misconduct claim cannot be established, as Plaintiff's proffered evidence does support her allegation that Katchman intentionally and willfully withheld treatment from Decedent. Plaintiff fails to in turn bear her burden to show such evidence exists, citing only evidence from Dr. Scarcella relevant to whether Katchman's conduct fulfilled the standard of care, which is not the relevant standard as to a willful misconduct claim. The Court will thus grant summary adjudication as to the first cause of action sounding in willful misconduct.

Second Cause of Action (Negligence)/Sixth Cause of Action (Malpractice) – In any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2.)

As a preliminary matter, Katchman asserts that, although the SAC states a cause of action sounding in ordinary negligence, the instant action for injury presents allegations against a health care provider based on provision of healthcare services, which means the action actually sounds in professional negligence. Plaintiff does not refute this assertion and argues a "standard of care" in her opposition, and as such the Court will analyze the second cause of action as a claim for professional negligence. Further, the elements of a claim for professional negligence and medical malpractice are identical, and so the Court will analyze both the second and sixth claims together.

Katchman argues that his expert witness, William Klein, M.D., establishes that he complied with the applicable standard of care in treating Decedent. (Decl. Klein, ¶¶ 7, 29, 32.) The Court has reviewed the Declaration of William Klein, M.D. and finds that Dr. Klein does opine the care provided by Katchman was within the standard of care but fails to define what the applicable standard of care is. (Decl. Klein, ¶¶ 7, 29, 32.) As stated by the Supreme Court of California:

Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter ... that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.

In Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558, 563, the plaintiffs argued that under Evidence Code section 801, subdivision (b), “a court should determine only whether the type of matter that an expert relies on in forming his or her opinion is the type of matter that an expert reasonably can rely on in forming an opinion, without regard to whether the matter relied on reasonably does support the particular opinion offered.” The Court of Appeal disagreed. “An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” (Lockheed Litigation Cases, supra, at p. 564, 10 Cal. Rptr. 3d 34.)

….

Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony. [Emphasis added].

(See, Sargon Enterprises, Inc. v. Univ. of S. California (2012) 55 Cal. 4th 747, 769–70.)

As further stated by the Court:

…“[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.” (Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510, 11 Cal. Rptr. 3d 653 (Bushling ).) “However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” [Emphasis added] (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117, 8 Cal. Rptr. 3d 363 (Jennings ).) “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1117–1118, 8 Cal. Rptr. 3d 363.) Regarding causation, “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” [Emphasis added] (Id. at p. 1118, 8 Cal. Rptr. 3d 363.)

These rules apply to expert witness declarations submitted in connection with a motion for summary judgment. (Powell, supra, 151 Cal. App. 4th at p. 123, 59 Cal. Rptr. 3d 618); (Bushling, supra, 117 Cal. App. 4th at p. 510, 11 Cal. Rptr. 3d 653.) “Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.” (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App. 4th 703, 718, 128 Cal. Rptr. 2d 529.) “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon, supra, 55 Cal. 4th at p. 770, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.) “[T]he gatekeeper’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” [Emphasis added] (Id. at p. 772, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.)

(See, Sanchez v. Kern Emergency Med. Transportation Corp. (2017) 8 Cal. App. 5th 146, 153 and 155–56, as modified (Feb. 16, 2017).)

A conclusory statement by an expert witness that a party acted within the standard of care without a corresponding definition of that applicable standard of care does not rise to the level of evidence required to fulfill the burden in a motion for summary judgment.

Katchman further argues that no compensable damages exist for the professional negligence and medical malpractice causes of action, as CCP ; 377.34 entitles Decedent only to damages sustained prior to death, and not damages for pain, suffering, or disfigurement. Katchman contends that Decedent entered into a previous settlement with Kindred for all special damages stemming from conduct occurring at Kindred, including conduct alleged by Plaintiff against Katchman, and because such special damages cannot be double-recovered from Katchman as well, there are no further compensable damages to meet the damages element of the causes of action. (Decl. Swann, ¶ 28.) Plaintiff addresses but fails to contradict Katchman's damages argument in its opposition, but disputes that the settlement broke down what was "special" or "general" damages in its lump sum payout in her separate statement submission, citing the Declaration of Dale A. Anderson. (Decl. Anderson, ¶ 43.) Katchman contends the relevant settlement agreement is under seal and so does not attach the document as an Exhibit but offers to provide such document to the Court under seal. The Court cannot evaluate the veracity of either party's claims without reviewing the settlement agreement in question, and the presence of such issue is both triable and material. The Court will thus deny summary adjudication as to the second and sixth causes of action sounding in professional negligence and medical malpractice.

Third Cause of Action (Elder Abuse) – Under the Elder and Dependent Adult Civil Protection Act ("EADACPA"), Welf. & Inst. Code ;15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code ; 15610.23, subd. (a).) The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666.) For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789. “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original) (internal citations omitted).)

“To obtain the remedies provided by the Act pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [citation] Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89 (quoting from Delaney v. Baker (1999) 20 Cal.4th 23).)

Katchman argues that Plaintiffs must show that he was Decedent's care custodian by clear and convincing evidence pursuant to Welfare & Institutions Code ; 15657(a) and Carter, supra, 198 Cal.App.4th 396, and fails to do so. Katchman cites Winn v. Pioneer Med. Grp., Inc., (2016) 63 Cal.4th 148, 164 for the contention that the EADACPA requires a separate analysis to determine whether a party has the requisite custodial relationship pursuant to section 15657. Plaintiff argues she did establish facts supporting Katchman's custodial relationship with Decedent sufficient to meet statutory requirements for elder abuse liability, including that Katchman had custodial care over Decedent, who was totally reliant on Defendants for basic activities. Plaintiff further cites to Stewart v. Superior Court (St. Joseph's Hospital) (2017) 16 Cal.App.5th 87 in support of the contention that a failure to honor a healthcare power of attorney and perform surgery contrary to stated wishes may state claim for elder abuse. Plaintiff contends Katchman acted analogously to the Stewart defendant in failing to honor the wishes of Decedent's power of attorney to send Decedent to a better-equipped facility.

The Court finds that Katchman sufficiently satisfies his prima facie burden to show that Plaintiff has not demonstrated, by clear and convincing evidence that Katchman was Decedent's care custodian pursuant to section 15657(a), a requirement to impose liability for an elder abuse claim. Plaintiff fails to directly refute Katchman's argument that she must show Katchman was Decedent's care custodian by clear and convincing evidence and does not cite specifically to evidence supporting her argument that Katchman was Decedent's care custodian pursuant to section 15657(a). On review of the numerous pieces of evidence cited in Plaintiff's Separate Statements 33, 34, 36, which are the only evidence citations provided in her argument, the Court cannot locate evidence supporting Plaintiff's contention. Plaintiff's citation of Stewart and associated argument concerning the power of attorney does not address Katchman's argument. As such, Plaintiff fails to satisfy her resulting burden to show evidence that Katchman was Decedent's care custodian. The Court will thus grant summary adjudication as to the third cause of action sounding in elder abuse.

Fourth Cause of Action (Breach of Fiduciary Duty) – The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.)

Katchman argues there is no evidence that he was in a fiduciary relationship with Decedent, and that the evidence shows he had no relationship with Decedent other than their one contact where he treated Decedent for the bleeding episode. Katchman fails to cite any authority for the proposition that a doctor and a patient are not in a fiduciary relationship if the doctor-patient relationship extends to only a "singular emergency situation". (MSJ, 17:26-27.) Absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29 (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”) (internal quotations omitted); California Rules of Professional Conduct, Rule 3.1.) Additionally, the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. (See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72 (“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”); Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 850 (“In a page and a half, and with citation to but one case for the general proposition the conduct was despicable, [Cross-Appellant appeals] from the granting of the directed verdict motion. This cursory treatment requires no discussion by us.”); Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 (“Where a point is merely asserted by appellant's counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.”).)

Katchman further argues that no compensable damages exist for the breach of fiduciary duty claim, as CCP ; 377.34 entitles Decedent only to damages sustained prior to death, and not damages for pain, suffering, or disfigurement. As analyzed earlier, the Court cannot evaluate the veracity of either party's claims without reviewing the settlement agreement in question, and the presence of such issue is both triable and material. The Court will thus deny summary adjudication as to fourth cause of action sounding in breach of fiduciary duty and order the full settlement agreement and release documents to be submitted under seal.

Fifth Cause of Action (Wrongful Death) – “A cause of action for wrongful death is … a statutory claim. (Code Civ. Proc., ;; 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death. [Citation.] The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Top of Form

Lattimore v. Dickey (2015) 239 Cal. App. 4th 959, 968 (emphasis original) (quoting Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263).) As to persons eligible to recover under the wrongful death statutes, CCP ; 377.60 provides in pertinent part: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons: (a) The decedent's surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who would be entitled to the property of the decedent by intestate succession.” The elements of the cause of action for wrongful death are (1) the tort (negligence or other wrongful act), (2) the resulting death, and (3) the damages, consisting of the pecuniary loss suffered only by those persons who, because of their relation to the deceased, are presumed to be injured by his or her death, not by persons who are not in the chain of intestate succession. (See Quiroz, supra, 140 Cal. App. 4th at 1263-64.)

Katchman argues that Plaintiff fails to sufficiently show Decedent's death was caused by Katchman's breach of duty as a matter of law, citing Jones v. Ortho Pharmaceutical (1985) 163 Cal.App.3d 396, 402-03 for the contention that recovery is barred when there exists only a mere possibility that the defendant's alleged negligence caused the death, and that causation must be established within a reasonable medical probability by competent expert testimony. Katchman further cites Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 and Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1385-86 for the contention that a "reasonable medical probability" is defined as "more likely than not", or the "substantial factor" in bringing about the death. Katchman presents the Declaration of William Klein, M.D to establish that Decedent's death was caused by natural progression of pre-existing medical conditions. (Decl. Klein, ¶ 30.) Katchman thus sufficiently fulfills his prima facie burden to show that Plaintiff fails to sufficiently show Katchman's breach of duty as to the wrongful death claim. Plaintiff in turn cites the Declaration of Anthony Scarcella to establish that Katchman's actions were a substantial factor in Decedent's death, and that Decedent's death was not caused by a natural progression of pre-existing conditions. (Decl. Scarcella, ¶¶ 39, 40.) Plaintiff also sufficiently bears her burden to establish the existence of a triable, material, and factual issue. The Court will thus deny summary adjudication as to the fifth cause of action sounding in wrongful death.

Fifth Cause of Action (Wrongful Death) – Objections – Katchman objects to multiple portions of the Declaration of Anthony Scarcella. For the purposes of this motion, the Court analyzes only material relevant to Objection Nos. 21 and 22, and will thus only rule on these objections.

In both Objection Nos. 21 and 22, Katchman objects to, and moves to strike, 19:24 through 20:4 and 21:18-21 of the Declaration of Anthony Scarcella, M.D. on the grounds of lack of foundation for opinion testimony, lack of foundation generally, lack of special knowledge, skill, experience, training, or education, and assuming facts not in evidence. On review of the Declaration of Anthony Scarcella, M.D., the Court finds that Dr. Scarcella is a licensed physician with over 30 years' experience with experience in emergency medicine. (Decl. Scarcella, ¶¶ 1, 3.) The Court thus overrules Katchman's objections concerning special knowledge, skill, training or education. The Declaration also states that Dr. Scarcella reviewed a variety of relevant documents, cited as exhibits, as the basis for his opinion. (See Decl. Scarcella.) The Court thus overrules Katchman's remaining objections as lack of foundation for opinion testimony, lack of foundation generally, and assuming facts not in evidence.

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RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Neil Katchman, M.D.'s motion for summary judgment came on regularly for hearing on October 16, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO THE FIRST CAUSE OF ACTION, AND DENIED AS TO THE SECOND, THIRD, FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION.

DATE: _______________ _______________________________

JUDGE

Case Number: BC655051    Hearing Date: September 25, 2020    Dept: A

Motion for Summary Adjudication

Court is not able to determine which complaint by plaintiff is the object of this motion.

The motion says it is directed to  "1. The First Cause of Action for Elder Abuse lacks merit. 2. The Second Cause of Action for Willful Misconduct lacks merit. 3. The Third Cause of Action for Negligence lacks merit. 4. The Fourth Cause of Action for Malpractice lacks merit. 5. The Fifth Cause of Action for Breach of Fiduciary Duty lacks merit. 6. The Sixth Cause of Action for Wrongful Death lacks merit. "

If moving party is able to point out the complaint with causes thus set forth, the court will consider continuing the matter. Otherwise, the motion must be denied as it does not state what complaint is involved, Original, FAC or SAC, and the causes in those complaints do not correspond with moving party's delineation.