This case was last updated from Los Angeles County Superior Courts on 08/04/2020 at 04:54:48 (UTC).

NICOLE LOUISE SCRANTON ET AL VS MOUHANAD ALWAN MD ET AL

Case Summary

On 06/05/2018 NICOLE LOUISE SCRANTON filed a Personal Injury - Medical Malpractice lawsuit against MOUHANAD ALWAN MD. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, KRISTIN S. ESCALANTE, GLORIA WHITE-BROWN and MARK A. BORENSTEIN. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8992

  • Filing Date:

    06/05/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

KRISTIN S. ESCALANTE

GLORIA WHITE-BROWN

MARK A. BORENSTEIN

 

Party Details

Plaintiffs and Petitioners

SCRANTON NICOLE LOUISE

SCRANTON MICHAEL

Defendants and Respondents

DOES 1 THROUGH 50 INCLUSIVE

ALWAN M.D. INC. A CALIFORNIA CORP.

POMONA VALLEY HOSPITAL MEDICAL CENTER

ALWAN M.D. MOUHANAD MARK

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NAPOLIN ALEXANDER DREW

LOMBARDO CATHERINE

LOMBARDO CATHERINE ROSE ESQ.

NASMYTH JR. PETER R

O'CONNELL KENDALL K.

Defendant and Respondent Attorneys

TYSON ROBERT F. JR. ESQ.

LYNCH GREGORY G. ESQ.

LYNCH GREGORY GORDON ESQ.

TYSON ROBERT FRANCIS JR

 

Court Documents

Substitution of Attorney

5/8/2020: Substitution of Attorney

Substitution of Attorney

5/8/2020: Substitution of Attorney

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO QUASH THE DEPOSITION NOTICE OF PERSONS M...) OF 03/05/2020

3/5/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO QUASH THE DEPOSITION NOTICE OF PERSONS M...) OF 03/05/2020

Case Management Statement

2/18/2020: Case Management Statement

Reply - REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO ALLOW PUNITIVE DAMAGES

1/10/2020: Reply - REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO ALLOW PUNITIVE DAMAGES

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT , OR IN THE ALTERNATIV...)

1/28/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT , OR IN THE ALTERNATIV...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/28/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Separate Statement

11/27/2019: Separate Statement

Notice of Motion

10/16/2019: Notice of Motion

Notice of Status Conference and Order

10/4/2019: Notice of Status Conference and Order

Reply - REPLY TO PLAINTIFF'S OPPOSITION

9/23/2019: Reply - REPLY TO PLAINTIFF'S OPPOSITION

Declaration - DECLARATION OF ALWAN IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

8/21/2019: Declaration - DECLARATION OF ALWAN IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Motion for Protective Order

7/31/2019: Motion for Protective Order

Opposition - OPPOSITION REQUEST FOR CONTINUANCE AND OPPOSITION TO MSJ

7/24/2019: Opposition - OPPOSITION REQUEST FOR CONTINUANCE AND OPPOSITION TO MSJ

Motion for Summary Judgment

5/24/2019: Motion for Summary Judgment

Proof of Personal Service

6/4/2019: Proof of Personal Service

NOTICE OF POSTING JURY FEES

8/7/2018: NOTICE OF POSTING JURY FEES

DEFENDANT POMONA VALLEY HOSPITAL MEDICAL CENTER'S ANSWER TO PLAINTIFFS' COMPLAINT

7/12/2018: DEFENDANT POMONA VALLEY HOSPITAL MEDICAL CENTER'S ANSWER TO PLAINTIFFS' COMPLAINT

89 More Documents Available

 

Docket Entries

  • 06/24/2020
  • DocketStipulation - No Order (Stipulation For Waiver Of Costs); Filed by Mouhanad Mark Alwan M.D. (Defendant); Alwan, M.D., Inc., a California Corp. (Defendant)

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  • 06/24/2020
  • DocketOrder (Proposed Order); Filed by Alwan, M.D., Inc., a California Corp. (Defendant)

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  • 06/15/2020
  • DocketAssociation of Attorney; Filed by Nicole Louise Scranton (Plaintiff); Michael Scranton (Plaintiff)

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  • 06/05/2020
  • DocketNotice (OF ENTRY OF ORDER); Filed by Mouhanad Mark Alwan M.D. (Defendant); Alwan, M.D., Inc., a California Corp. (Defendant)

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  • 06/05/2020
  • DocketMemorandum of Costs (Summary); Filed by Mouhanad Mark Alwan M.D. (Defendant); Alwan, M.D., Inc., a California Corp. (Defendant)

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  • 06/04/2020
  • DocketNotice (Notice Of Entry Of Judgment Or Order); Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 06/04/2020
  • DocketNotice (Notice Of Entry Of Judgment Or Order); Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 06/01/2020
  • DocketJudgment (Re Motion for Summary Judgment); Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 06/01/2020
  • DocketOrder (Re Motion for Summary Judgment); Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 05/08/2020
  • DocketSubstitution of Attorney; Filed by Michael Scranton (Plaintiff)

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117 More Docket Entries
  • 07/12/2018
  • DocketDemand for Jury Trial; Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 07/12/2018
  • DocketCIVIL DEPOSIT

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  • 07/12/2018
  • DocketDEFENDANT POMONA VALLEY HOSPITAL MEDICAL CENTER'S ANSWER TO PLAINTIFFS' COMPLAINT

    Read MoreRead Less
  • 07/12/2018
  • DocketReceipt; Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 07/12/2018
  • DocketNotice; Filed by Pomona Valley Hospital Medical Center (Defendant)

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  • 06/22/2018
  • DocketProof of Personal Service

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  • 06/22/2018
  • DocketProof-Service/Summons; Filed by Nicole Louise Scranton (Plaintiff); Michael Scranton (Plaintiff)

    Read MoreRead Less
  • 06/05/2018
  • DocketComplaint; Filed by Nicole Louise Scranton (Plaintiff); Michael Scranton (Plaintiff)

    Read MoreRead Less
  • 06/05/2018
  • DocketSummons; Filed by Nicole Louise Scranton (Plaintiff); Michael Scranton (Plaintiff)

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  • 06/05/2018
  • DocketComplaint

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Tentative Rulings

Case Number: BC708992    Hearing Date: March 05, 2020    Dept: J

HEARING DATE: Thursday, March 5, 2020

NOTICE: Motion #1: OK[1]

Motion #2: See below[2]

RE: Scranton v. Alwan, et al. (BC708992) [AMENDED]

______________________________________________________________________________

 

1. Defendant Pomona Valley Hospital Medical Center’s MOTION TO QUASH THE DEPOSITION NOTICE OF PERSONS MOST KNOWLEDGEABLE FROM POMONA VALLEY MEDICAL CENTER OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER

Responding Party: Plaintiffs, Nicole Louise Scranton and Michael Scranton

2. Defendant Pomona Valley Hospital Medical Center’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Responding Party: Plaintiffs, Nicole Louise Scranton and Michael Scranton

Tentative Ruling

1. Defendant Pomona Valley Hospital Medical Center’s Motion to Quash the Deposition

Notice of Persons Most Knowledgeable from Pomona Valley Medical Center or, in the

Alternative, for Protective Order is GRANTED.

2. Defendant Pomona Valley Hospital Medical Center’s Motion for Summary Judgment, or

in the Alternative, Summary Adjudication is GRANTED.

Background

This action arises out of care and treatment provided to Plaintiff Nicole Louise Scranton (“Nicole”) during a surgical procedure performed on November 14, 2017. Nicole alleges that her November 14, 2017 surgical procedure was performed below the standard of care and that her fallopian tube was removed during said procedure without her consent. On June 5, 2018, Nicole and her husband, Michael Scranton (“Michael”) (collectively, Plaintiffs”) filed a complaint, asserting causes of action against Defendants Mouhanad Mark Alwan, M.D. (“Alwan”), Alwan, M.D., Inc. (“Alwan Inc.”), Pomona Valley Hospital Medical Center (“PVHMC”) and Does 1-50 FOR:

  1. Medical Malpractice [by Nicole only]

  2. Medical Battery [by Nicole only]

  3. Negligent Screening/Retention [by Nicole only v. PVHMC only]

  4. Loss of Consortium [by Michael only]

On September 27, 2019, this case was transferred from Department 2 (personal injury hub) to this instant department.

A Status Conference is set for March 5, 2020.

1. Defendant PVHMC’s Motion to Quash

Legal Standard

A party may move for an order staying the taking of the deposition and quashing the deposition notice. (CCP § 2025.410(c).) The motion must be accompanied by a meet and confer declaration. (Id.) The court must impose a monetary sanction “against any party, person, or attorney who unsuccessful makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.410(d).)

“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order . . .” (CCP § 2017.020(a).)

Also, “[t]he court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation . . .” (CCP § 2019.030(a).)

Discussion

PVHMC moves the court for an order quashing Plaintiffs’ “Notice of Deposition of the Person Most Knowledgeable at Pomona Valley Hospital Medical Center and Demand for Production [of] Documents at Deposition” (“Notice”) or, in the alternative, for a protective order regarding the following depositions: (1) Person Most Knowledgeable (“PMK”) from PVHMC regarding policies and procedures by which physician privileges are obtained and maintained; (2) PMK from PVHMC regarding the affiliation of Alwan to PVHMC and (3) PMK from PVHMC regarding the facts and allegations in Plaintiffs’ complaint. Defendants also move for an order quashing or, in the alternative for a protective order from answering, all requests for production accompanying the subject notices.

On June 27, 2019, Plaintiffs served a notice for various categories of PMKs. (Motion, 2:18-19.) PVHMC served objections. (Id., 2:24.) On July 12, 2019, Plaintiffs’ counsel sent a meet and confer letter to PVHMC’s counsel regarding PVHMC’s objections, requesting therein that a response be received by the close of the next business day and demanding that depositions of various PMKs from PVHMC be completed within 5 business days of July 12, 2019. (Starvish Decl., ¶2, Exh. A.) On July 16, 2019, PVHMC’s counsel provided a responsive letter. (Id., ¶3, Exh. B.) On July 17, 2019, Plaintiffs served their Notice, unilaterally setting the depositions for August 1, 2019. (Id., ¶4, Exh. C.) PVHMC objected to the Notice. (Id., ¶5, Exh. D.)

PVHMC contends that the Notice violates Evidence Code § 1157, in that Plaintiffs are seeking those proceedings and records of PVHMC as they relate to the granting of privileges to Alwan. At the outset, the court notes that “the burden of establishing entitlement to nondisclosure rest[s] with the party resisting discovery, not the party seeking it.” (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 627.)

Evidence Code §1157 states, in relevant part, that “[n]either the proceedings nor the records of organized committees of medical . . . staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body, . . . shall be subject to discovery.” Business and Professions Code § 805 defines a “peer review body” as including “[a] medical or professional staff of any health care facility or clinic licensed under Division 2 (commencing with Section 1200) of the Health and Safety Code . . .”

A hospital, such as PVHMC, has a duty to evaluate physicians who apply and reapply for the privilege to practice medicine at the hospital. (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 339-340.) If that duty is breached, it can result in the hospital’s liability under a corporate liability theory. (Id. at 337-338, 346.) The existence of that duty and a claimed breach, however, does not negate Evidence Code § 1157’s prohibition of the discovery of the medical staff’s proceedings and records. In Alexander v. Superior Court (1993) 5 Cal.4th 1218 (disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4), plaintiffs brought a medical malpractice action against several physicians and a hospital. The trial court declined to order discovery, sought by plaintiffs, of the physicians’ applications and reapplications for staff privileges at the hospital. The Court of Appeal filed a decision directing issuance of a peremptory writ in the first instance and directed the trial court to enter an order compelling defendant hospital to produce the requested documents. The Supreme Court reversed the Court of Appeal’s judgment and remanded with directions to deny the petition for a writ of mandate; in doing so, the court held, inter alia, that the discovery order was barred by Evidence Code § 1157. The court explained:

“Hospitals have a dual structure. First, an administrative governing board (often comprised of persons other than health care professionals) takes ultimate responsibility for the quality and performance of the hospital. Second, an ‘organized medical staff’ entity (composed of health care professionals) has responsibility for providing medical serves, and is ‘responsible to the governing body for the adequacy and quality of the medical care rendered to patients in the hospital’ (Cal. Code Regs., tit. 22, § 70703, subd. (a); see also id., § 70701(a)(1)(F); Bus. & Prof. Code, § 805.5.)

The medical staff entity is required to perform various functions (e.g., ‘executive review, credentialing, . . . utilization review, infection control’) through one or more committees. (Cal. Code Regs., tit. 22, § 70703, subd. (d).) State regulations require that medical staff committees have ‘formal procedures for the evaluation of staff applications and credentials, appointments, reappointments, [and] assignment of clinical privileges . . .’ (Id., tit. 22, § 70703, subd. (b)), and that applicants and reapplicants for hospital privileges must ‘demonstrate their ability to perform surgical and/or other procedures competently and to the satisfaction of an appropriate committee or committees of the staff, at the time of original application for appointment to the staff and at least every two years thereafter.’ (Id., tit. 22, § 70701, subd. (a)(7).)

Given the statutory and regulatory scheme, it is clear that applications for staff privileges are the province of the hospital’s medical staff committee . . . [a]lthough a hospital’s administrative governing body makes the ultimate decision about whether to grant or deny staff privileges, it does so based on the recommendation of its medical staff committees.” (Id. at 1224.)

The court rejected plaintiffs’ assertion that section 1157 does not protect applications for staff privileges from discovery because they are not both “generated by the protected committee” and “pert[inent] to the committee’s investigative and evaluative functions.” The court determined that (1) “nothing in section 1157(a) limits the privilege to records that are generated by a medical staff committee, and nothing in the statute supports the suggestion that materials submitted to a committee for review are not protected ‘records’ of the committee;” that such applications, based on the above described statutory and regulatory scheme, do “pertain to the committee’s investigative end evaluative functions;” and that plaintiffs’ assertion was contrary to the legislative purpose underlying section 1157, which “evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.” (Id. at 1225-1226 [emphasis in original].) The court noted that section 1157 does not prevent a plaintiff from obtaining relevant information in the form of deposing a physician and asking whether he or she was previously denied staff privileges, or by reviewing public records to determine whether the physician has suffered a malpractice judgment or disciplinary action. (Id. at 1223, fn. 4.)

Plaintiffs, in their opposing separate statement, argue that they should be able to discover whether or not a defendant hospital evaluated its physicians. The court does not disagree with this position. As the Court of Appeal in Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501 stated:

“[A] medical malpractice plaintiff should be able to discovery whether or not defendant Hospital evaluated its physicians. This result stimulates the evaluation process without permitting penetration of the content of committee discussions. It is our view that such information does not constitute either ‘proceedings’ or ‘records’ under the policy the Legislature has evidenced in enacting section 1157.

To be sure, permitting a ‘yes’ or ‘no’ answer to a question directed to the fact of evaluation only encourages hospitals to conduct evaluations. If no evaluation has occurred, there is nothing to protect under section 1157; and petitioner acquires information that may be valuable in her lawsuit against Hospital. If an evaluation has occurred, section 1157 protects the committees and hospital from further disclosure.” (Citation omitted.)

The court here concludes that PVHMC has established that the categories and documents sought are within the province of PVHMC’s medical staff’s committees and are thus prohibited from discovery.

The court further concludes that Plaintiffs’ third category request in particular is otherwise overbroad and fails to reasonably describe the categories in which testimony is requested.

The motion is GRANTED.

2. Defendant PVHMC’s Motion for Summary Judgment

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

Discussion

PVHMC moves the court for an order granting summary judgment in its favor and against

Plaintiffs pursuant to CCP § 437c on the ground that no triable issue of material fact

exists and Defendant is therefore entitled to judgment as a matter of law. In the alternative,

PVHMC seeks summary adjudication as follows:

Issue No. 1: Nicole’s cause of action for Medical Malpractice is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to Nicole’s injuries.

Issue No. 2: Nicole’s cause of action for Medical Battery is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to Nicole’s injuries – PVHMC nursing and ancillary staff did not perform the at issue surgery and did not remove Plaintiff’s fallopian tube.

Issue No. 3: Nicole’s cause of action for Negligent Screening/Retention is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to the injuries alleged by Plaintiffs.

Issue No. 4: Michael’s cause of action for Loss of Consortium is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to the injuries alleged by Plaintiffs.

Plaintiffs’ complaint alleges four causes of action against PVHMC, for (1) Medical Malpractice, (2) Medical Battery, (3) Negligent Screening/Retention and (4) Loss of Consortium; the first three causes of action are brought by Nicole only, whereas the fourth cause of action is brought by Michael only. Plaintiffs’ action arises out of the care and treatment provided to Nicole during a surgical procedure performed by Alwan at PVHMC on November 14, 2017. Nicole contends her November 14, 2017 surgical procedure was performed below the standard of care, necessitating a subsequent surgical procedure and hospitalization. Nicole further contends that Alwan severed her ureter and removed her right fallopian tube without her consent during the at issue surgical procedure. Nicole contends that PVHMC negligently screened and retained Alwan as part of its medical staff.

 

 

 

First Cause of Action (i.e., Medical Malpractice)

The elements of medical malpractice are: “(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. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted].)

“The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.” (Folk v. Kilk (1975) 53 Cal.App.3d 176, 185.) “Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) Additionally, “causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “[T]he issue of proximate cause. . . becomes a question or law when the facts of the case permit only one reasonable conclusion.” (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

PVHMC submits the declaration of Board-certified urologist J. Bradley Taylor, M.D. (“Bradley”). Bradley attests that he has reviewed Nicole’s medical records from PVHMC. (Bradley Decl., ¶5.) Bradley details the care and treatment rendered to Nicole, and concludes that it is his expert opinion to a reasonable degree of medical probability that PVHMC and its nursing and ancillary staff met the applicable standard of care at all times during their care and treatment of Nicole. (Id., ¶21.) Bradley further concludes, to a reasonable degree of medical probability, that there was no act or omission to act on the part of PVHMC or its staff which caused, contributed to or was a substantial factor in bringing about the injuries and damages alleged by Nicole. (Id.) Bradley’s opinions are based on the following: (1) providing a patient with informed consent of risks and complications of medical procedures is within the scope of medical practice, not nursing or ancillary staff, (2) decision-making regarding how a surgical procedure is to be performed and the performance of said surgical procedure is within the scope of medicine, not nursing or ancillary staff, (3) the selection of diagnostic tests to be performed, the evaluation of test results, the formation and assessment of medical diagnoses, the decision to include specialists and/or consultants in the medical care and treatment of the patient are all within the scope of medicine, not nursing or ancillary staff and (4) PVHMC’s nursing and ancillary staff followed and implemented physician orders in their care in treatment of Nicole in an appropriate and timely manner. (Id.) Bradley concludes that, to a reasonable degree of medical probability there was no violation of the standard of care by PVHMC’s nursing or ancillary staff or anything that the nursing and/or ancillary staff did or failed to do which caused or contributed to Nicole’s alleged injuries or damages. (Id., ¶22.) Bradley further concludes that there is no evidence to a reasonable degree of medical of medical probability that any act or omission of PVHMC was a substantial factor in negligently causing or contributing to the injuries or damages claimed by Nicole. (Id., ¶23.)

The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact. In response, Plaintiffs represent that they retained a medical doctor, who is Board certified in Obstetrics and Gynecology, to review the motion and Bradley’s declaration. (Nov. 27, 2019 O’Connell Decl., ¶3.) Based on his opinion, PVHMC, in fact, complied with the applicable standards of care and did not cause or contribute to Nicole’s injuries. (Id.) Nicole does not oppose the motion on the first cause of action for medical malpractice. (Id.)

Second Cause of Action (i.e., Medical Battery)

In order to establish a claim for medical battery, plaintiff must prove all of the following: (1) defendant performed a medical procedure without plaintiff’s consent, or plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure; (2) plaintiff was harmed and (3) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See CACI No. 530A.)

Again, PVHMC submits Bradley’s declaration. The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact. Plaintiffs likewise indicate that, for the reasons set forth above, they do not oppose the motion on the second cause of action for medical battery. (Nov. 27, 2019 O’Connell Decl., ¶3.)

Third Cause of Action (i.e., Negligent Screening/Retention)

A hospital has “a direct and independent responsibility to its patients of insuring the competency of its medical staff and the quality of medical care provided through the prudent selection, review and continuing evaluation of the physicians granted staff privileges.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346.) “[A] hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility.” (Id.)

PVHMC presents evidence that Alwan was a physician licensed to practice medicine in the state of California with board certifications in Obstetrics and Gynecology with no public record of any action being taken against his license in the 10 years prior to the surgery at issue. (Starvish Decl., ¶5, Exh. C.) The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact.

Again, the instant motion was originally set for hearing on August 9, 2019. On August 9, 2019, the court continued the hearing to November 8, 2019, pursuant to Plaintiffs’ request, on the basis that:

“Plaintiffs have shown good faith in support of the continuance to conduct depositions of Defendant, Dr. Alwan, and the Hospital’s person most knowledgeable regarding policies and procedures by which physician privileges are obtained and maintained, among other things, to which Defendant has objected. (Declaration of Catherine R. Lombardo, ¶¶4-7.) The facts to be obtained are essential to opposing the motion, counsel for Plaintiffs believe such facts exist, and additional time is needed to complete the depositions given Defendants’ lengthy objections to Plaintiff’s to the PMK deposition notice. Declaration of Lombardo, ¶¶4-7. Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 655-656.

Defendant contends that Plaintiffs have had enough time to conduct discovery. Reply 21-24. Plaintiffs have been attempting to set these depositions since 03/28/2019. Lombardo Declaration ¶5. Regardless, lack of diligence alone (which has not been shown) in obtaining discovery does not justify denial of the request for a continuance[.] Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398.

There is no evidence of inappropriate delay on Plaintiffs’ part nor evidence of bad faith. Cooksey v. Alexakis (2004) 123 Cal.Ap.4th 246, 257.

The fourth cause of action for loss of consortium depends on the underlying negligence claims asserted. By its nature, such a claim depends on a spouse’s claim for tortious injury. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.”

On September 27, 2019, this case was transferred from Department 2 to this instant department. On October 10, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the November 8, 2019 hearing had been rescheduled to December 13, 2019.[3]

On November 27, 2019, Plaintiffs filed a second opposition to, and request for continuance of, the instant motion, on the basis that Plaintiffs needed to depose PVHMC’s PMK but that PVHMC had filed a motion to quash the deposition notice of same, which was reset for hearing on March 5, 2020.

The court has now considered the motion to quash and has granted same. As such, the court will consider whether Plaintiffs have shown a triable issue of material fact.

Plaintiffs have failed to present any such evidence. Plaintiffs’ counsel Catherine Lombardo’s (“Lombardo”) declaration opining that Alwan pleading guilty to vandalism in 1998 and to petty theft in 2000 17-plus years before the surgery at issue makes Alwan unfit to practice medicine is speculative and unsupported by an expert. Lombardo has failed to provide the court with any supporting documentary evidence. Lombardo also declares that Alwan has been the defendant in at least six medical malpractice actions filed between 2011 and 2019, including this action, but fails to provide the court with evidence that this purported fact, which again is not supported by any documentary evidence, makes Alwan unfit to practice medicine and that PVHMC was been negligent in their screening and retention process of Alwan. As PVHMC states, “[i]t is a well known and common practice in medical malpractice cases for plaintiff attorneys to initially name as defendants any healthcare provider that was involved in their client’s care and treatment and then dismiss parties as investigation progresses. Being named in as [sic] a party to a lawsuit does not equate to negligent conduct or any wrongdoing.” (Reply, 4:14-18.) Finally, Lombardo opining that Alwan relinquishing his OB core privileges at PVHMC (which, again, is unsupported by any documentary evidence) somehow means Alwan is unfit to practice medicine is speculative and unsupported.

Fourth Cause of Action (i.e., Loss of Consortium)

Claims for loss of consortium fail, where they are derivative of, or dependent upon, other causes of action that fail. (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 596, fn. 16.) Michael’s loss of consortium claim fails based on the rulings made above.

The court finds that there is no triable issue as to any material fact and that PVHMC is entitled to a judgment as a matter of law. The motion is GRANTED.


[1] Motion #1 was filed on July 31, 2019 and originally set for hearing on September 30, 2019. On September 27, 2019, this case was transferred from Department 2 to this instant department. On November 14, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the September 30, 2019 hearing had been rescheduled to March 5, 2020.

[2] Motion #2 was filed on May 24, 2019 and originally set for hearing on August 9, 2019. On August 9, 2019, the court continued the hearing to November 8, 2019, pursuant to Plaintiffs’ request, on the basis that “Plaintiffs have shown good faith in support of the continuance to conduct depositions of Defendant, Dr. Alwan, and the Hospital’s person most knowledgeable regarding policies and procedures by which physician privileges are obtained and maintained, among other things. . .” Again, on September 27, 2019, this case was transferred from Department 2 to this instant department. On October 10, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the November 8, 2019 hearing had been rescheduled to December 13, 2019. On December 5, 2019, the December 13, 2019 hearing was rescheduled by the court to January 28, 2020. On December 6, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the December 13, 2019 hearing had been rescheduled to January 28, 2020. On January 28, 2020, the court granted Alwan’s motion for summary judgment but continued the hearing on the instant motion to March 5, 2020. Moving party was ordered to give notice. Moving party has not filed a notice of ruling, to date (i.e., as of February 26, 2020, 2:38 p.m.)

[3] Again, on December 5, 2019, the December 13, 2019 hearing was rescheduled by the court to January 28, 2020.

Case Number: BC708992    Hearing Date: January 29, 2020    Dept: J

HEARING DATE: Wednesday, January 29, 2020

NOTICE: OK[1]

RE: Virginia Asset Partners, LLC v. USM Investments, Inc., et al. (KC070029)

______________________________________________________________________________

Defendant Sergio Ulloa’s MOTION TO QUASH THE DEPOSITION SUBPOENA FOR

BUSINESS RECORDS SUBMITTED TO JPMORGAN CHASE BANK, N.A.

Responding Party: Plaintiff, Virginia Asset Partners, LLC

Tentative Ruling

See below.

 

Background

This lawsuit involves a dispute over the sale of the real property located at 20560 E. Holt Avenue in Covina (“subject property”). On February 22, 2018, Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC (“Plaintiff”) filed a First Amended Complaint, asserting causes of action against Defendants USM Investments, Inc. (“USM”), Sergio M. Ulloa, individually and as President of USM Investments, Inc. and Does 1-20 for:

  1. Specific Performance

  2. Declaratory Relief

  3. Declaratory Relief

  4. Breach of Contract

  5. Temporary Restraining Order, Preliminary and Permanent Injunction

On May 3, 2018, USM filed a cross-complaint, asserting causes of action against Plaintiff, Cross-Defendant Jade Escrow, Inc. (“Jade”) and Roes 1-20 for:

  1. Breach of Contract

  2. Fraud

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Rescission

  5. Breach of Fiduciary Duty

  6. Breach of Contract

  7. Professional Negligence

On October 10, 2019, Plaintiff filed two “Amendment[s] to Complaint,” wherein Herman Carrillo was named in lieu of Doe 1 and Rosemary Carrillo was named in lieu of Doe 2. On October 10, 2019, Plaintiff filed a “Notice of Pendency of Action.”

On November 12, 2019, Plaintiff filed a “Recorded Notice of Pendency of Action.”

A Case Management Conference and Trial Setting Conference are set for January 29, 2020.

Legal Standard

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms of conditions as the court shall declare, including protective orders. (CCP § 1987.1(a).)

In making an order pursuant to CCP § 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP § 1987.2(a).)

Discussion

Ulloa moves to quash Plaintiff’s deposition subpoena for business records to JPMorgan Chase Bank, N.A.

Ulloa has failed to attach the deposition subpoena at issue; as such, it is unclear what precisely Ulloa is moving to quash, aside from nonspecific “personal banking records.” The hearing on the motion will be CONTINUED to March 2, 2020, 8:30 am.  Counsel for Ulloa is instructed to file a supplemental declaration attaching the entirety of the deposition subpoena forthwith.


[1] The motion was filed (and mail and email-served) on November 4, 2019 and originally set for hearing on February 6, 2020. On December 3, 2019, the court rescheduled the hearing on this motion to January 29, 2020 and provided notice of same via a Certificate of Mailing.

Case Number: BC708992    Hearing Date: January 28, 2020    Dept: J

HEARING DATE: Tuesday, January 28, 2020

NOTICE: Motion #1: OK[1]

Motion #2: OK[2]

RE: Scranton v. Alwan, et al. (BC708992)

______________________________________________________________________________

 

1. Defendant Pomona Valley Hospital Medical Center’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Responding Party: Plaintiffs, Nicole Louise Scranton and Michael Scranton

2. Defendants M. Mark Alwan, M.D.’s and Alwan, M.D., Inc.’s MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Responding Party: Plaintiffs, Nicole Louise Scranton and Michael Scranton

Tentative Ruling

1. The hearing on Defendant Pomona Valley Hospital Medical Center’s Motion for

Summary Judgment, or in the Alternative, Summary Adjudication is CONTINUED to

March 27, 2020, 8:30 am.

2. Defendants M. Mark Alwan, M.D.’s and Alwan, M.D., Inc.’s Motion for Summary Judgment is GRANTED.

Background

This action arises out of care and treatment provided to Plaintiff Nicole Louise Scranton (“Nicole”) during a surgical procedure performed on November 14, 2017. Nicole alleges that her November 14, 2017 surgical procedure was performed below the standard of care and that her fallopian tube was removed during said procedure without her consent. On June 5, 2018, Nicole and her husband, Michael Scranton (“Michael”) (collectively, Plaintiffs”) filed a complaint, asserting causes of action against Defendants Mouhanad Mark Alwan, M.D. (“Alwan”), Alwan, M.D., Inc. (“Alwan Inc.”), Pomona Valley Hospital Medical Center (“PVHMC”) and Does 1-50 FOR:

  1. Medical Malpractice [by Nicole only]

  2. Medical Battery [by Nicole only]

  3. Negligent Screening/Retention [by Nicole only v. PVHMC only]

  4. Loss of Consortium [by Michael only]

On September 27, 2019, this case was transferred from Department 2 (personal injury hub) to this instant department.

A Status Conference is set for January 28, 2020.

1. Defendant PVHMC’s Motion for Summary Judgment

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

Discussion

PVHMC moves the court for an order granting summary judgment in its favor and against

Plaintiffs pursuant to CCP § 437c on the ground that no triable issue of material fact

exists and Defendant is therefore entitled to judgment as a matter of law. In the alternative,

PVHMC seeks summary adjudication as follows:

Issue No. 1: Nicole’s cause of action for Medical Malpractice is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to Nicole’s injuries.

Issue No. 2: Nicole’s cause of action for Medical Battery is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to Nicole’s injuries – PVHMC nursing and ancillary staff did not perform the at issue surgery and did not remove Plaintiff’s fallopian tube.

Issue No. 3: Nicole’s cause of action for Negligent Screening/Retention is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to the injuries alleged by Plaintiffs.

Issue No. 4: Michael’s cause of action for Loss of Consortium is without merit because (1) PVHMC’s conduct at all relevant times complied with the standard of care and (2) nothing PVHMC did or allegedly failed to do caused or contributed to the injuries alleged by Plaintiffs.

Plaintiffs’ complaint alleges four causes of action against PVHMC, for (1) Medical Malpractice, (2) Medical Battery, (3) Negligent Screening/Retention and (4) Loss of Consortium; the first three causes of action are brought by Nicole only, whereas the fourth cause of action is brought by Michael only. Plaintiffs’ action arises out of the care and treatment provided to Nicole during a surgical procedure performed by Alwan at PVHMC on November 14, 2017. Nicole contends her November 14, 2017 surgical procedure was performed below the standard of care, necessitating a subsequent surgical procedure and hospitalization. Nicole further contends that Alwan severed her ureter and removed her right fallopian tube without her consent during the at issue surgical procedure. Nicole contends that PVHMC negligently screened and retained Alwan as part of its medical staff.

First Cause of Action (i.e., Medical Malpractice)

The elements of medical malpractice are: “(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. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted].)

“The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts.” (Folk v. Kilk (1975) 53 Cal.App.3d 176, 185.) “Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons.” (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) Additionally, “causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) “[T]he issue of proximate cause. . . becomes a question or law when the facts of the case permit only one reasonable conclusion.” (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

PVHMC submits the declaration of Board-certified urologist J. Bradley Taylor, M.D. (“Bradley”). Bradley attests that he has reviewed Nicole’s medical records from PVHMC. (Bradley Decl., ¶5.) Bradley details the care and treatment rendered to Nicole, and concludes that it is his expert opinion to a reasonable degree of medical probability that PVHMC and its nursing and ancillary staff met the applicable standard of care at all times during their care and treatment of Nicole. (Id., ¶21.) Bradley further concludes, to a reasonable degree of medical probability, that there was no act or omission to act on the part of PVHMC or its staff which caused, contributed to or was a substantial factor in bringing about the injuries and damages alleged by Nicole. (Id.) Bradley’s opinions are based on the following: (1) providing a patient with informed consent of risks and complications of medical procedures is within the scope of medical practice, not nursing or ancillary staff, (2) decision-making regarding how a surgical procedure is to be performed and the performance of said surgical procedure is within the scope of medicine, not nursing or ancillary staff, (3) the selection of diagnostic tests to be performed, the evaluation of test results, the formation and assessment of medical diagnoses, the decision to include specialists and/or consultants in the medical care and treatment of the patient are all within the scope of medicine, not nursing or ancillary staff and (4) PVHMC’s nursing and ancillary staff followed and implemented physician orders in their care in treatment of Nicole in an appropriate and timely manner. (Id.) Bradley concludes that, to a reasonable degree of medical probability there was no violation of the standard of care by PVHMC’s nursing or ancillary staff or anything that the nursing and/or ancillary staff did or failed to do which caused or contributed to Nicole’s alleged injuries or damages. (Id., ¶22.) Bradley further concludes that there is no evidence to a reasonable degree of medical of medical probability that any act or omission of PVHMC was a substantial factor in negligently causing or contributing to the injuries or damages claimed by Nicole. (Id., ¶23.)

The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact. In response, Plaintiffs represent that they retained a medical doctor, who is Board certified in Obstetrics and Gynecology, to review the motion and Bradley’s declaration. (Nov. 27, 2019 O’Connell Decl., ¶3.) Based on his opinion, PVHMC, in fact, complied with the applicable standards of care and did not cause or contribute to Nicole’s injuries. (Id.) Nicole does not oppose the motion on the first cause of action for medical malpractice. (Id.)

No ruling will be made at this juncture as to this cause of action, however, on the basis that the motion is being continued (see below).

Second Cause of Action (i.e., Medical Battery)

In order to establish a claim for medical battery, plaintiff must prove all of the following: (1) defendant performed a medical procedure without plaintiff’s consent, or plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure; (2) plaintiff was harmed and (3) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See CACI No. 530A.)

Again, PVHMC submits Bradley’s declaration. The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact. Plaintiffs likewise indicate that, for the reasons set forth above, they do not oppose the motion on the second cause of action for medical battery. (Nov. 27, 2019 O’Connell Decl., ¶3.)

No ruling will be made at this juncture as to this cause of action, however, on the basis that the motion is being continued (see below).

Third Cause of Action (i.e., Negligent Screening/Retention)

A hospital has “a direct and independent responsibility to its patients of insuring the competency of its medical staff and the quality of medical care provided through the prudent selection, review and continuing evaluation of the physicians granted staff privileges.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346.) “[A] hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility.” (Id.)

PVHMC presents evidence that Alwan was a physician licensed to practice medicine in the state of California with board certifications in Obstetrics and Gynecology with no public record of any action being taken against his license in the 10 years prior to the surgery at issue. (Starvish Decl., ¶5, Exh. C.) The court finds that this offer of evidence satisfies PVHMC’s burden of proof, and thus the burden shifts to Nicole to show a triable issue of material fact.

The court notes that the instant motion was originally set for hearing on August 9, 2019. On August 9, 2019, the court continued the hearing to November 8, 2019, pursuant to Plaintiffs’ request, on the basis that:

“Plaintiffs have shown good faith in support of the continuance to conduct depositions of Defendant, Dr. Alwan, and the Hospital’s person most knowledgeable regarding policies and procedures by which physician privileges are obtained and maintained, among other things, to which Defendant has objected. (Declaration of Catherine R. Lombardo, ¶¶4-7.) The facts to be obtained are essential to opposing the motion, counsel for Plaintiffs believe such facts exist, and additional time is needed to complete the depositions given Defendants’ lengthy objections to Plaintiff’s to the PMK deposition notice. Declaration of Lombardo, ¶¶4-7. Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 655-656.

Defendant contends that Plaintiffs have had enough time to conduct discovery. Reply 21-24. Plaintiffs have been attempting to set these depositions since 03/28/2019. Lombardo Declaration ¶5. Regardless, lack of diligence alone (which has not been shown) in obtaining discovery does not justify denial of the request for a continuance[.] Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398.

There is no evidence of inappropriate delay on Plaintiffs’ pat nor evidence of bad faith. Cooksey v. Alexakis (2004) 123 Cal.Ap.4th 246, 257.

The fourth cause of action for loss of consortium depends on the underlying negligence claims asserted. By its nature, such a claim depends on a spouse’s claim for tortious injury. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.”

” Again, on September 27, 2019, this case was transferred from Department 2 to this instant department. On October 10, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the November 8, 2019 hearing had been rescheduled to December 13, 2019.[3]

On November 27, 2019, Plaintiffs filed a second opposition to, and request for continuance of, the instant motion. Plaintiffs’ counsel Kendall O’Connell attests, inter alia, that on March 28, 2019, she caused her paralegal to sent PVHMC’s counsel an email requesting a mutually agreeable date for the deposition of PVHMC’s Person Most Knowledgeable (“PMK”); that no response was received; that on June 13, 2019, after being served with the motion, the paralegal sent an email to PVHMC’s counsel requesting dates for the PMK’s deposition, but received no response; that on June 27, 2019, Plaintiffs noticed the deposition of PVHMC’s PMK regarding the policies and procedures by which physician privileges are obtained and maintained, the affiliation between PVHMC and Alwan, and the allegations of Plaintiffs’ complaint and requested the production of PVHMC’s pertinent administrative records pertaining to Alwan; that the date for the PMK deposition was set for July 10, 2019; that on July 2, 2019, PVHMC served an objection to the Notice of Deposition; that counsel thereafter unsuccessfully met and conferred; that on July 17, 2019, Plaintiffs’ counsel re-noted the PMK’s deposition for August 1, 2019, prior to the August 9, 2019 initial hearing on the instant motion; that on July 24, 2019, PVHMC’s counsel served an objection to the Notice of Deposition and on July 31, 2019 filed a Motion to Quash, which was scheduled to be heard on September 30, 2019; that on August 9, 2019, the court continued the Motion for Summary Judgment to allow Plaintiffs to obtain the necessary deposition of PVHMC’s PMK; that on September 17, 2019, Plaintiffs filed an opposition to the Motion to Quash, and on September 23, 2019, PVHMC filed its reply brief thereto; that on September 27, 2019, the court ordered the case transferred and reassigned to this court, and all motion and trial dates were vacated; that on November 13, 2019, Plaintiffs personally served a second amended Notice of Deposition of PVHMC’s PMK for November 25, 2019, but that PVHMC again served an objection and on November 14, 2019 filed a Notice of Continuance of the previously filed Motion to Quash, which is now set for hearing on March 5, 2020. (O’Connell Decl., ¶¶5-8.) O’Connell requests a continuance of the instant motion to allow Plaintiffs’ counsel to take the depositions of PVHMC’s PMK. (Id., ¶10.)

Based on the above, the court determines that the Motion to Quash must be heard and ruled upon before a ruling on the instant motion can be made.

Fourth Cause of Action (i.e., Loss of Consortium)

Again, based on the discussion set forth as to the third cause of action, the court determines that the Motion to Quash must be heard and ruled upon before a ruling on the instant motion can be made. The court will continue the hearing on the instant motion to  March 27, 2020 8:30 am.

2. Defendants Alwan’s and Alwan Inc’s Motion for Summary Judgment

Discussion

Alwan and Alwan Inc. move the court for an order granting summary judgment in their favor

and against Plaintiffs pursuant to CCP § 437c on the ground that no triable issue of material fact

exists and Defendants are therefore entitled to judgment as a matter of law. In the alternative,

Alwan and Alwan Inc. seek summary adjudication as follows:

Issue No. 1: Nicole’s cause of action for Medical Malpractice is without merit because (1) Alwan’s conduct at all relevant times complied with the standard of care and (2) Alwan’s conduct was not a cause of, or a substantial factor in, any alleged injury sustained by Nicole.

Issue No. 2: Nicole’s cause of action for Medical Battery is without merit because Nicole cannot establish the first element, i.e., that Alwan performed a medical procedure on Nicole without consent or exceeded Nicole’s express or implied consent by performing a substantially different procedure.

Issue No. 3: Nicole’s punitive damages claim, asserted in the Medical Battery Cause of action, is without merit because (1) it is barred by CCP § 425.13 and/or (2) Alwan did not act with malice, oppression, or fraud.

Issue No. 4: Michael’s cause of action for Loss of Consortium is without merit Nicole’s first and second causes of action are without merit.

Evidentiary Objections

The court rules on Alwan’s and Alwan Inc.’s evidentiary objections as follows: SUSTAIN as to Nos. 1 and 2, part of No. 3 (i.e., as to the second sentence reading, “Dr. Alwan had not previously obtained consent to do that” and that part of the third sentence reading “beyond considerations which could have been discussed and consented to or not consented to by the patient prior to surgery”), No. 4, part of No. 7 (i.e., as to the first and second sentences) and No. 8 and OVERRULE as to part of No. 3 (i.e., as to the first sentence and that part of the third sentence reading, “[n]o unusual findings involving the patient’s right fallopian tube were noted at the time of surgery which would have given any special reason to remove that fallopian

tube. . .”), part of No. 7 (i.e., as to the third sentence reading, “[n]othing happened at the time of surgery that suddenly necessitated the removal of the right fallopian tube”) and No. 6.

The court declines to rule on No. 5 on the basis that it does not comply with California Rules of Court (“CRC”) Rule 3.1354(b)(3) (i.e., written objections must “quote or set forth the objectionable statement or material.”)

Merits

Plaintiffs’ complaint alleges three causes of action against Alwan and Alwan Inc., for (1) Medical Malpractice, (2) Medical Battery, and (4) Loss of Consortium. A summary of Plaintiffs’ complaint is set forth above.

 

First Cause of Action (i.e., Medical Malpractice)

 

The court incorporates the legal authorities set forth in Motion #1 above as to this cause of action.

Alwan and Alwan Inc. submit the declaration of Board-certified obstetrician/gynecologist Mel M. Kurtulus, M.D. (“Kurtulus”). Kurtulus attests that he has reviewed Plaintiffs’ complaint and Nicole’s medical records from PVHMC and Inland Urology Medical Group. (Kurtulus Decl., ¶3.) Kurtulus details the care and treatment rendered to Nicole, and concludes that it is his opinion to a reasonable degree of medical probability that the entirety of the care and treatment provided by Alwan complied with the standard of care for obstetricians/gynecologists. (Id., ¶27.) Kurtulus concludes that Alwan appropriately evaluated Nicole and presented her with the known associated risk of laparoscopy, a possible left salpingo-oophorectomy and a possible laparotomy. (Id.) He further concludes that Alwan appropriately, and within the standard of care, performed the laparoscopy, lysis of left side pelvic adhesions and left salpingo-oophorectomy procedures. (Id., ¶28.) Kurtulus explains that, during the procedure, Alwan found left side pelvic wall scarring. (Id., ¶29.) Alwan used a LigaSure device to remove the left fallopian tube and ovary. (Id.) In the process of removing the left fallopian tube and ovary, Alwan inadvertently ligated the ureter. (Id.) This type of injury could occur, and does occur, in the absence of negligence, and it is difficult to anticipate each patient’s unique anatomy. (Id.) Kurtulus further explains that the ligation of the ureter is a recognized common complication of laparoscopic surgery and a known and accepted risk, and that injuring the ureter does not fall below the standard of care during laparoscopic surgery. (Id., ¶30.) Kurtulus further attests: (1) Alwan was not required to enlist a urologist surgeon to assist in the laparoscopic procedure; (2) injecting methylene blue dye when there is a suspected cut of hole in the ureter is the appropriate test and within the standard of care; (3) when Alwan observed the blue dye did not spill into the pelvic area and was draining into the catheter, he did not fall below the standard of care in believing there was no injury to Nicole’s ureter. Alwan did not fall below the standard of care by not consulting a urologist at this time since he did not believe he injured the ureter; (4) after Nicole reporter her left flank pain, Alwan immediately consulted a urologist and ordered a CT, which was appropriate, timely, and within the standard of care; (5) since injury to the ureter is a recognized and common complication of the surgery performed by Alwan, the additional surgery by Dr. Nguyen was not necessitated by negligence or anything Alwan did wrong; (6) Nicole would have undergone the same treatment to repair her ureter whether the ligated ureter was discovered immediately during Alwan’s surgery or when it was actually discovered within 2 days later; (7) Alwan visualized the right fallopian tube intraoperatively and believed it could be a source of Nicole’s pelvic pain. His removal of the right fallopian tube did not fall below the standard of care as it was a potential source of her pelvic pain and was in the best interests of Nicole’s health; (8) removal of the right fallopian tube was medically necessary and not a substantially different medical procedure than the consent provided by Nicole for laparoscopy, a possible left salpingo-oophorectomy and a possible laparotomy; (9) there is no information in the medical records that Nicole made any statements or indications she did not approve of removal of her right fallopian tube and (10) Nicole did not sustain any permanent injuries and will not have any future sequelae.

(Id., ¶¶31-40.)

The court finds that this offer of evidence satisfies Alwan’s and Alwan Inc.’s burden of proof, and thus the burden shifts to Plaintiffs to show a triable issue of material fact. In opposition, Plaintiffs present a declaration from Board-certified obstetrician/gynecologist Seth D. Bulow, M.D. (“Bulow”). Bulow attests that he has reviewed Nicole’s medical records from PVHMC and the moving papers. (Bulow Decl., ¶7.) Bulow opines that Alwan fell below the standard of care by failing to adequately identify and isolate the left ureter prior to removal of the left fallopian tube and ovary. (Id., ¶18.) He believes Alwan should have either isolated and dissected out the ureter laparoscopically before removing the left tube and ovary or, if that was beyond his level of surgical skill, should have opened the patient to adequately identify he ureter or called for an intraoperative consult from a surgeon who was capable of identifying and isolating the ureter or abandoned the operation and closed. (Id.). He opines that, simply because ureteral injury is a known possible complication of laparoscopic pelvic surgery, that fact does not absolve the surgeon from the obligation to take reasonable care to try to avoid such a complication. (Id., ¶20.) Bulow opines that nothing happened at the time of surgery that suddenly necessitated the removal of the right fallopian tube. (Id., ¶18)

The court sustains Alwan’s and Alwan Inc’s evidentiary objections as certain of Bulow’s conclusory, unsupported statements regarding consent, as well as his opinions regarding the need for a cystoscopy to reveal a ureteral obstruction. Bulow states that “[t]owards the end of the surgery, Dr. Alwan was concerned about a possible ‘disruption of the ureter on the left side” (Bulow Decl., ¶13); however, the “Operative/Procedure Rpt” for November 14, 2017 states that, “[b]efore we closed the skin and while the scope was inside, I decided to inject methylene blue through the IV just because of the distorted anatomy on the left side to make sure that there is no disruption of the ureter on the left side. We waited around 15 minutes. The Foley catheter bag turned into green and blue. There was no spilling of methylene blue in the pelvic area. The rest of the pelvic area again was dry and clean.” (Alwan Decl., ¶13, Exh. G; Moving Notice of Lodgment, Exh. G.) Bulow’s statement, then, that Alwan had a “concern” which should have triggered the performance of a cystoscopy, which in turn would have revealed a ureteral obstruction, is unfounded. Bulow does not contend that Alwan should have suspected a ureter blockage had occurred at the time of surgery. Moreover, although Bulow contends Alwan should have isolated and dissected out the ureter laparoscopically before removing the left tube and ovary or opened the patient adequately to identify the ureter (Id., ¶18(A)), he does not identify when the circumstances require that such procedures be undertaken. Bulow also concedes that ureteral injury is a known possible complication of laparoscopic pelvic injury. (Id., ¶20.)

The court also sustains Alwan’s and Alwan Inc.’s evidentiary objection to the pathology report. The court declines to entertain Plaintiffs’ theory that Alwan fraudulently concealed that Nicole’s left ureter had been partially resected. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [“A plaintiff cannot bring up new, unpleaded issues in his or her opposing papers”].)

Based on the above, the court determines that this offer of evidence does not satisfy Plaintiffs’ burden of proof, such that adjudication of this cause of action is granted.

 

Second Cause of Action (i.e., Medical Battery)

 

The court incorporates the legal authorities set forth in Motion #1 above as to this cause of action.

Nicole alleges that she did not give informed consent to Alwan to sever her ureter or to remove her right fallopian tube. (Complaint, ¶30.) However, Bulow concedes that a ureteral injury is a possible known complication associated with laparoscopic pelvic surgery. Moreover, it is undisputed that Nicole’s consent “authorized the performance of such additional or different operations and procedures as were considered necessary and advisable to address her pelvic pain.” (UMF No. 14.) It is likewise undisputed that “during the procedure, Dr. Alwan found Ms. Scranton’s right ovary appeared to be multicystic and the right fallopian tube was adherent to the ovary” and that “[p]er the American College of Obstetricians and Gynecologists (ACOG), if a fallopian tube is tied and not functioning, it is recommended to remove the fallopian tube to decrease pain and risk of cancer.” (UMF Nos. 20 and 22.) Additionally, Plaintiffs do not dispute the right fallopian tube’s adherence to a multicystic ovary might cause Nicole’s pelvic pain, but only dispute whether Alwan’s Operative/Procedure Report included this information; as such UMF No. 21 is essentially undisputed. Alwan attested, that he determined that this condition could be contributing to the cause of Nicole’s pelvic pain. (Alwan Decl., ¶14.) Bulow’s declaration, however, is silent regarding whether a fallopian tube adherent to a multicystic ovary might have caused Nicole’s pelvic pain.

The court determines, then, that adjudication of this cause of action is granted.

 

Punitive Damages

 

Defendants are entitled to summary adjudication of Nicole’s punitive damages claim on the basis that Nicole did not comply with CCP § 425.13. This provision states, in relevant part, that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil

Code. . .”

“[A] claim of battery ‘predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13.’” (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749, quoting Central Pathology Services Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.)

Plaintiffs, as of the August 21, 2019, filing date of the instant motion, has not filed a motion pursuant to CCP § 425.13 (Heppenstall Decl., ¶6); rather, Nicole first filed a “Motion to Allege Punitive Damages Against Defendants Mouhanad Mark Alwan, M.D. and Alwan, M.D., Inc.” on December 5, 2019. The motion was denied on January 22, 2020.

 

Fourth Cause of Action (i.e., Loss of Consortium)

Michael’s loss of consortium claim is derivative of Nicole’s claims. (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256.) Michael’s loss of consortium claim fails based on the rulings made above.

Vicarious Liability

 

“[A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) Here, however, inasmuch as Plaintiffs have failed to raise genuine issues of material fact as to her allegations against Alwan, there can be no vicarious liability on the part of Alwan Inc.

Alwan’s and Alwan Inc.’s Motion for Summary Judgment is granted.

[1] Motion #1 was filed on May 24, 2019 and originally set for hearing on August 9, 2019. On August 9, 2019, the court continued the hearing to November 8, 2019, pursuant to Plaintiffs’ request, on the basis that “Plaintiffs have shown good faith in support of the continuance to conduct depositions of Defendant, Dr. Alwan, and the Hospital’s person most knowledgeable regarding policies and procedures by which physician privileges are obtained and maintained, among other things. . .” Again, on September 27, 2019, this case was transferred from Department 2 to this instant department. On October 10, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the November 8, 2019 hearing had been rescheduled to December 13, 2019. On December 5, 2019, the December 13, 2019 hearing was rescheduled by the court to January 28, 2020. On December 6, 2019, moving party filed and mail-served a “Notice of Continuance,” advising therein that the December 13, 2019 hearing had been rescheduled to January 28, 2020.

[2] Motion #2 was filed on August 21, 2019 and originally set for hearing on November 4, 2019. On September 27, 2019, this case was transferred from Department 2 to this instant department. On October 16, 2019, moving party filed a notice, advising therein that the November 4, 2019 hearing had been rescheduled to December 13, 2019. On December 5, 2019, the December 13, 2019 hearing was rescheduled by the court to January 28, 2020. On December 13, 2019, moving party filed and mail-served a notice, advising therein that the December 13, 2019 hearing had been rescheduled to January 28, 2020.

[3] Again, on December 5, 2019, the December 13, 2019 hearing was rescheduled by the court to January 28, 2020.

Case Number: BC708992    Hearing Date: January 16, 2020    Dept: J

HEARING DATE: Thursday, January 16, 2020

NOTICE: OK

RE: Scranton v. Alwan, et al. (BC708992)

______________________________________________________________________________

 

Plaintiffs Nicole Louise Scranton’s and Michael Scranton’s MOTION TO ALLOW

PLAINTIFF NICOLE LOUISE SCRANTON TO ALLEGE PUNITIVE DAMAGES

AGAINST DEFENDANTS MOUHANAD MARK ALWAN, M.D. AND ALWAN, M.D.,

INC.

Responding Party: Defendants, M. Mark Alwan, M.D. and Alwan M.D., Inc.

Tentative Ruling

Plaintiffs Nicole Louise Scranton’s and Michael Scranton’s Motion to Allow Plaintiff

Nicole Louise Scranton to Allege Punitive Damages Against Defendants Mouhanad Mark

Alwan, M.D. and Alwan, M.D., Inc. is DENIED.

Background

This action arises out of care and treatment provided to Plaintiff Nicole Louise Scranton (“Nicole”) during a surgical procedure performed on November 14, 2017. Nicole alleges that her November 14, 2017 surgical procedure was performed below the standard of care and that her fallopian tube was removed during said procedure without her consent. On June 5, 2018, Nicole and her husband, Michael Scranton (“Michael”) (collectively, Plaintiffs”) filed a complaint, asserting causes of action against Defendants Mouhanad Mark Alwan, M.D., Alwan, M.D., Inc., Pomona Valley Hospital Medical Center (“PVHMC”) and Does 1-50 FOR:

  1. Medical Malpractice [by Nicole only]

  2. Medical Battery [by Nicole only]

  3. Negligent Screening/Retention [by Nicole only v. PVHMC only]

  4. Loss of Consortium [by Michael only]

On September 27, 2019, this case was transferred from Department 2 (personal injury hub) to this instant department.

A Status Conference is set for January 28, 2020.

Legal Standard

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading or filed or not less than nine months before the matter is first set for trial, whichever is earlier.” (CCP § 425.13(a) [emphasis added].)

Discussion

Plaintiffs move the court for an order, per CCP § 425.13, to allow Plaintiff Nicole to allege and

pray for punitive damages against Defendants Mouhanad Mark Alwan, M.D. and Alwan, M.D.,

Inc. (hereinafter collectively, “Defendants”), as alleged in the complaint filed on June 5, 2018.

Plaintiffs, citing Goldstein v. Superior Court (1996) 42 Cal.App.4th 1635, contend that,

notwithstanding the fact that the motion was not filed within nine months of the initial trial date,

the motion is nevertheless timely because compliance with the aforesaid time mandate was

impossible or reasonably impracticable.

In Goldstein, however, trial was set for a date less than nine months away, thus precluding

compliance with the statutory deadline once the trial was set. Here, the initial trial date was

December 5, 2019, which was well in excess of nine months after the June 5, 2018 complaint

was filed. This does not appear to be a situation where Plaintiffs “through no fault of [their]. . .

own, ha[ve] been placed in a position where compliance with the nine-month time mandate is

impossible or reasonably impracticable.” (Goodstein, supra, 42 Cal.App.4th at 1645.)

Additionally, even if Goldstein applied, Plaintiffs have failed to satisfy its five-part test that, “[i]n the context of the factual circumstances presented by th[at] case,” the plaintiff must satisfy to obtain relief. (Id.) The plaintiff “must be able to show. . . (1) she was unaware of the facts or evidence necessary to make a proper motion under section 425.13 more than nine months prior to the first assigned trial date, (2) she made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date, (3) after assignment of the trial date she made reasonable diligent and good faith efforts to complete the necessary discovery, (4) she filed her motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of her initial complaint) and (5) [the defendant] will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet [the plaintiff’s] punitive damage allegations.” (Id. [emphasis in original].) The motion, then, is DENIED.