This case was last updated from Los Angeles County Superior Courts on 06/26/2019 at 03:57:08 (UTC).

ROBERTA GOMEZ ET AL VS HACIENDA LA PUENTE UNIFIED SCHOOL

Case Summary

On 01/18/2018 ROBERTA GOMEZ filed a Personal Injury - Other Personal Injury lawsuit against HACIENDA LA PUENTE UNIFIED SCHOOL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0752

  • Filing Date:

    01/18/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

 

Party Details

Petitioners and Plaintiffs

MURRILLO MARTIN

ESTATE OF MOISES MURILLO

GOMES ROBERTA

Respondents and Defendants

SUNSET ELEMENTARY SCHOOL

DOES 1 TO 20

PARULAN-COLFER CYNTHIA

HACIENDA LA PUENTE UNIFIED SCHOOL

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

CARRILLO LUIS A. ESQ.

MOVSESIAN SEVAN I.

Respondent and Defendant Attorneys

DUMONT LOUIS R. ESQ.

CARPENTER ROTHANS & DUMONT

 

Court Documents

COMPLAINT FOR DAMAGES FOR: (1) NEGLIGENCE; (2) WRONGFUL DEATH

1/18/2018: COMPLAINT FOR DAMAGES FOR: (1) NEGLIGENCE; (2) WRONGFUL DEATH

SUMMONS

1/18/2018: SUMMONS

Declaration

2/27/2018: Declaration

Amended Complaint

3/20/2018: Amended Complaint

DEFENDANT HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

4/20/2018: DEFENDANT HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

Declaration

4/23/2018: Declaration

Declaration

4/23/2018: Declaration

STIPULATION AND ORDER TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT

5/7/2018: STIPULATION AND ORDER TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

5/30/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

Proof of Service of Summons and Complaint

2/14/2018: Proof of Service of Summons and Complaint

 

Docket Entries

  • 05/30/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Hacienda La Puente Unified School (Defendant)

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  • 03/15/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Hacienda La Puente Unified School (Defendant)

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  • 05/07/2018
  • STIPULATION AND ORDER TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT

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  • 05/07/2018
  • Stipulation and Order; Filed by Hacienda La Puente Unified School (Defendant); Cynthia Parulan-Colfer (Defendant)

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  • 04/23/2018
  • Declaration; Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff)

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  • 04/23/2018
  • Declaration; Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff)

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  • 04/23/2018
  • Declaration Declaration of Martin Murillo Pursuant to Section 37732

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  • 04/23/2018
  • Declaration Declaration of Roberta Gomez Pursuant to Section 377.32

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  • 04/20/2018
  • Answer; Filed by Hacienda La Puente Unified School (Defendant); Cynthia Parulan-Colfer (Defendant)

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  • 04/20/2018
  • DEFENDANT HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

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  • 04/05/2018
  • Partial Dismissal (w/o Prejudice); Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff); Estate of Moises Murillo (Plaintiff)

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  • 03/20/2018
  • Amended Complaint; Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff); Estate of Moises Murillo (Plaintiff)

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  • 03/20/2018
  • Defendant's Claim and Order to Go to Small Claims Court (Small Claims) (First)

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  • 02/27/2018
  • Declaration; Filed by Hacienda La Puente Unified School (Defendant); Cynthia Parulan-Colfer (Defendant)

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  • 02/27/2018
  • Declaration of Katrina J. Valencia re Compliance with Meet & Confer Requirements ofr CCP Section 430.41

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  • 02/14/2018
  • Proof of Service of Summons and Complaint

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  • 02/14/2018
  • Proof-Service/Summons; Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff); Estate of Moises Murillo (Plaintiff)

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  • 01/18/2018
  • Complaint; Filed by Roberta Gomes (Plaintiff); Martin Murrillo (Plaintiff); Estate of Moises Murillo (Plaintiff)

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  • 01/18/2018
  • SUMMONS

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  • 01/18/2018
  • COMPLAINT FOR DAMAGES FOR: (1) NEGLIGENCE; (2) WRONGFUL DEATH

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Tentative Rulings

Case Number: BC690752    Hearing Date: March 11, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

March 11, 2021

CASE NUMBER

BC690752

MOTION

Motion for Summary Judgment, or in the alternative Motion for Summary Adjudication

MOVING PARTY

Defendant Gallagher Pediatric Therapy

OPPOSING PARTY

Defendant Hacienda La Puente Unified School District

MOVING PAPERS:

  1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Exhibit List in Support of Motion for Summary Judgment
  3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

  1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities

  2. Index of Exhibits in Support of Opposition to Motion for Summary Judgment

  3. Response to Separate Statement of Undisputed Material Fact

  4. Objections to Evidence

REPLY PAPERS:

  1. Memorandum in Reply to Opposition to Motion for Summary Judgment

  2. Response to the District’s Separate Statement of Undisputed Material Facts

BACKGROUND

Plaintiffs Roberta Gomez and Martin Murrillo (“Plaintiffs”) sued Defendant Gallagher Pediatric Therapy (“Defendant”) based on the death of Decedent Moises Murillo (“Decedent”). Plaintiffs allege that Decedent died while he was attending preschool at a school within Hacienda La Puente Unified School District (“District”). Plaintiffs allege that Elke Tapia (“Tapia”) provided Decedent with physical therapy as an employee of Defendant while Decedent was a student. Plaintiffs allege Decedent died when he fell backwards in his chair. Defendant moves for summary judgment, or in the alternative summary adjudication, on Plaintiffs’ first amended complaint. Plaintiffs have not opposed the motion. The District opposes the motion.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

EVIDENCE

The Court has considered and overrules the evidentiary objections (1 through 12) submitted by the District.

DISCUSSION

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. When applied to [medical professionals], this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 2021 WL 282302, at *5, citations omitted [cleaned up].) To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

“The legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that [medical professionals] exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Thus, liability is not found, and the label of malpractice is not placed upon a [medical professional’s] actions, unless some deviation by the [medical professional] from the standard of care that his peers consider appropriate in the situation under review” is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081, citations omitted & emphasis added [cleaned up].)

Expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony , unless the conduct required by the particular circumstances is within the common knowledge of the layman”] [cleaned up].) As the Court of Appeal has held, in reversing summary judgments for medical professionals, “The standard of care against which the acts of a [medical professional] are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, [defendant] is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607, citations omitted & emphasis added [cleaned up].)

Defendant advances Tapia’s declaration. As Tapia is a physical therapist, she may testify as an expert, even though she is also Defendant’s employee. (See O'Connor v. Bloomer (1981) 116 Cal.App.3d 385, 391.) Tapia states that her opinions are based on her firsthand experience in providing professional services to Decedent. Tapia states that her treatment of Decedent was within the standard of care at all times, and did not cause or contribute to Decedent’s death. (See Declaration of Elke I. Tapia, ¶¶ 13-14.) Tapia’s declaration meets Defendant’s burden to show that Plaintiffs cannot prevail on their claim against Defendant, because Tapia’s treatment of Decedent met the standard of care and did not cause or contribute to Decedent’s death. Defendant has shifted the burden to Plaintiffs to raise triable issues of material fact.

In opposition, the District fails to advance expert testimony. As such, the District’s evidence is not admissible on Defendant’s breach of the standard of care, and the District’s arguments are inconsequential. The District contends Tapia negligently advised the District about the use of a preschool chair and gait belt. Tapia addresses this issue in her declaration. Tapia states, “I observed Decedent in a small preschool chair during circle time or an adaptive stroller. Sometimes, Decedent would have a gait belt positioned around his waist when he was sitting in the preschool chair. I did not find this use of the gait belt unusual and have seen a gait belt used for this purpose both in the hospital and the classroom setting.” (See Declaration of Elke I. Tapia, ¶¶ 13-14.) The District has not advanced any evidence to show that Defendant’s purported failure to advise the District regarding the proper use of the gait belt or preschool chair breached the standard of care.

The District argues that Tapia recommended that the District use the gait belt and preschool chair. Dodi Gunadi (“Gunadi”), a teacher’s aide who worked with Decedent, testified that Tapia advised school personnel who worked with Decedent to use the gait belt. (Appendix of Evidence in Support of Opposition to Defendant’s Motion for Summary Judgment, Exhibit G, pp. 15, 24, 30.) Other school personnel testified similarly. (See Appendix of Evidence in Support of Opposition to Defendant’s Motion for Summary Judgment, Exhibit H, pp. 47, 58-60, 74-76, Exhibit I, pp. 18-19, 109-110, 113, 137.) Tapia denies this. (Appendix of Evidence in Support of Opposition to Defendant’s Motion for Summary Judgment, Exhibit F, pp. 19, 44, 62-63.) However, as the District’s evidence shows, if Tapia advised school personnel to use the gait belt, Tapia did so in her role as a physical therapist providing “expertise” on “[a]ny equipment used in the classroom.” (Appendix of Evidence in Support of Opposition to Defendant’s Motion for Summary Judgment, Exhibit G, p. 30.) Thus, if Tapia advised school personnel to use the gait belt, Tapia did so in her role as a physical therapist, and expert testimony is necessary to raise triable issues of material fact as to whether Defendant is liable based on Tapia’s professional negligence. The District has not advanced any expert testimony.

Because neither Plaintiffs nor the District have advanced expert evidence in opposition to the motion, neither Plaintiffs nor the District can meet their burdens to raise triable issues of material fact as to whether Defendant is liable for the claims asserted in the first amended complaint. Moreover, the Court finds that Defendant’s Undisputed Material Facts (UMF) Nos. 1 through 24 have not been disputed through the introduction of sufficient, competent evidence, but the UMFs, in part, have been purportedly disputed through arguments and objections to evidence which have been overruled. More to the point, UMF Nos. 2 and 20 are not material facts despite the District claiming the UMFs are disputed without evidentiary support, and UMF Nos. 17 and 18 have not been disputed despite the District’s assertions to the contrary because the District fails to proffer expert evidence in support of its assertions.

CONCLUSION AND ORDER

The Court finds that Plaintiff and the District have failed to meet their burdens of production to make a prima facie showing of the existence of triable issues of material fact. Therefore, the Court grants Defendant’s motion for summary judgment. Defendant is ordered to give notice of the Court’s order, and to file a proof of service of same.

Because the Court grants the motion for summary judgment, the Court need not reach Defendant’s motion for summary adjudication of its affirmative defense under the Medical Injury Compensation Reform Act of 1975, or MICRA.

Case Number: BC690752    Hearing Date: December 01, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

roberta gomez, et al.,

Plaintiffs,

v.

hacienda la puente unified school district, et al.,

Defendants.

Case No.: BC690752

Hearing Date: December 1, 2020

[TENTATIVE] order RE:

MOTION TO TRANSFER

Plaintiffs Roberta Gomez, Martin Murillo, and the Estate of Moises Murillo (“Plaintiffs”) move to transfer this case to an Independent Calendar court. The Court finds no good cause to do so. Therefore, Plaintiffs’ motion is denied. Plaintiffs shall provide notice and file proof of such with the Court.

DATED: December 1, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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