Atkins v. Hoag Memorial Hospital Presbyterian

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Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 854-855 [“the trial judge in making its ruling as a matter of law should apply the standard of clear and convincing evidence, since that is the standard plaintiffs would ultimately have to meet in proving entitlement to punitive damages ... [t]hus, a prima facie case of entitlement to punitive damages must meet the standard that plaintiffs will be likely to prevail by showing malice, oppression, or fraud by clear and convincing evidence”]; Looney v.

Superior Court (1993) 16 Cal.App.4th 521, 537 [“Since petitioners' ultimate burden at trial will be to satisfy the jury by clear and convincing evidence that defendants were guilty of malice, oppression or fraud ... then a determination of whether a prima facie case exists will have to be judged by that same standard”]; see also id. at 539–540 [in ruling on a Section 425.13 motion, “the trial court will have to be satisfied that petitioners' evidentiary showing rises to that level”].)

Defendants’ evidentiary objection to ¶¶ 25 and 32 of plaintiff Sonia Atkins’ supporting declaration are SUSTAINED, on grounds of lack of foundation. (Evid. Code, §§ 720, subd. (a) [“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates ... [a]gainst the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert”], 801, subd. (a) [“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is ... [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”]; Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864 [“Speculation ... is not evidence”].)

Defendants’ evidentiary objection to ¶ 29 of the Atkins Decl. is SUSTAINED as to the portion reading “it contained the same data, the same numerical results, and the same wave forms as the first version,” on grounds of lack of foundation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a).) Defendants’ evidentiary objection to ¶ 46 of the Atkins Decl. is SUSTAINED as to the portion reading “preserve the authentic report” as lacking foundation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a).) Defendants’ evidentiary objection to ¶ 50 of the Atkins Decl. is SUSTAINED as to the portion reading “my true EMG/NCS results” as lacking foundation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a).) Defendants’ evidentiary objection to ¶ 53 of the Atkins Decl. is SUSTAINED as to the portion

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reading “my true EMG/NCS results” as lacking foundation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a).) Defendants’ evidentiary objection to ¶ 54 of the Atkins Decl. is SUSTAINED as to the first sentence, on grounds of lack of foundation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a).) Defendants’ remaining evidentiary objections are OVERRULED.

Plaintiff has not presented sufficient admissible evidence showing that the testing and reports provided by defendants contained results, data, and/or conclusions belonging to another patient. Plaintiff’s admissible evidence at best shows that 2 of the four pages of the report initially listed another patient’s name (Atkins Decl., ¶¶ 15-18). However, absent admissible evidence, as opposed to speculation, that the actual results are inaccurate or altered, plaintiff has not presented sufficient evidence satisfying the requirements for the instant motion.

Motion for Leave to Amend [defendant Hoag Memorial Hospital Presbyterian]

Plaintiff Sonia Atkins’ motion for leave to allege punitive damages against defendant Hoag Memorial Hospital Presbyterian [Hoag] is DENIED. (Code Civ. Proc., § 425.13 [authorizing motion].)

Plaintiff’s currently operative Second Amended Complaint [SAC] already alleges punitive damages against all defendants. Other defendants previously successfully moved to strike plaintiff’s punitive damages allegations in the SAC. (ROA 218 [2-9-26 minute order], 234 [3-9-26 minute order].) However, Hoag admits it never did so. (Opposition [ROA 273] at 2:18-27.)

Since the SAC already alleges punitive damages against this defendant, which were not challenged via a motion to strike, the instant motion is unnecessary.

Motion for Leave to Amend [defendants Memorialcare Medical Foundation, Memorialcare Medical Group, and Ziba Ranjbaran, M.D.]

Plaintiff Sonia Atkins’ motion for leave to allege punitive damages against defendants Memorialcare Medical Foundation [“MCMF”], Memorialcare Medical Group [“MCMG”], and Ziba Ranjbaran, M.D. is DENIED. (Code Civ. Proc., § 425.13 [authorizing motion].)

While these defendants have not lodged any evidentiary objections, plaintiff’s declaration and evidence at best shows

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that defendants failed to provide waveform data; however, plaintiff’s evidence does not show that they did so intentionally, nor otherwise amount to clear and convincing evidence as required. (Civ. Code, § 3294, subd. (a) [“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant”]; Aquino v.

Superior Court (1993) 21 Cal.App.4th 847, 854-855 [“the trial judge in making its ruling as a matter of law should apply the standard of clear and convincing evidence, since that is the standard plaintiffs would ultimately have to meet in proving entitlement to punitive damages ... [t]hus, a prima facie case of entitlement to punitive damages must meet the standard that plaintiffs will be likely to prevail by showing malice, oppression, or fraud by clear and convincing evidence”]; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 537 [“Since petitioners' ultimate burden at trial will be to satisfy the jury by clear and convincing evidence that defendants were guilty of malice, oppression or fraud ... then a determination of whether a prima facie case exists will have to be judged by that same standard”]; see also id. at 539–540 [in ruling on a CCP 425.13 motion, “the trial court will have to be satisfied that petitioners' evidentiary showing rises to that level”].)

Further, plaintiff has not provided sufficient evidence to support punitive damages liability on the part of the entity defendants. (Civ. Code, § 3294, subd. (b); CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1273, citing White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576–577 [“principal liability for punitive damages [does] not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy ... to establish that an individual is a managing agent, a plaintiff seeking punitive damages must show that ‘the employee exercised substantial discretionary authority over significant aspects of a corporation's business’”].)

Motion for Summary Adjudication [defendants Dean Albert Le, M.D., and Saddleback Valley Neuroscience Medical Group dba Saddleback Neurology]

The motion by defendants Dean Albert Le, M.D. and Saddleback Valley Neuroscience Medical Group doing business as Saddleback Neurology for summary adjudication of plaintiff

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Sonia Atkin’s 1st cause of action for fraudulent concealment is GRANTED. (Code Civ. Proc., § 437c, subd. (f) [authorizing summary adjudication].)

Moving parties have met their initial burden of presenting evidence sufficient to show that plaintiff cannot establish the essential elements of intentional concealment of material facts. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Moving Parties’ Separate Statement, Fact Nos. 2-4; Le Decl., ¶ 9-11 [the “whited out” portions in plaintiff’s original EMG/NCV testing report were due to his failure to replace plaintiff’s name in the template on all pages when preparing the report, which his staff noticed and corrected, and that both the first and second versions of the report are otherwise true and accurate, containing plaintiff’s data], 13 [explaining alleged discrepancy regarding observation of scar].)

Plaintiff has not met her shifted burden to present evidence sufficient to create a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) Plaintiff contends that the two pages with the wrong patient’s name in fact contained someone else’s data, but fails to present evidence showing this was the case. Rather, plaintiff relies on inferences and speculation, which is insufficient to create triable issues of material fact. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524 [once a party seeking summary judgment / adjudication has met its initial burden, “[a] party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact”]; Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864 [“Speculation ... is not evidence”]; Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 823 [“The opposing party may rely upon inferences, but those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork;” internal citation and quotation marks omitted]; Isner v. Falkenberg/Gilliam & Associates, Inc. (2008) 160 Cal.App.4th 1393, 1398 [“Where all of the evidence presented by the plaintiff shows the existence of an element of the offense only as likely as or even less likely than the nonexistence of that element, the court must grant the defendant's motion for summary judgment because a reasonable trier of fact could not find for the plaintiff in such a case”].)

Similarly, plaintiff’s credibility arguments are not grounds to deny the motion, absent direct evidence sufficient to dispute moving parties’ evidence, which is not present. (Code Civ.

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Proc., § 437c, subd. (e) [“If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment ...”]; McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119 [court does not engage in a credibility determination or a weighing of the evidence].)

Moving defendants’ Reply Separate Statement (ROA 279) is not considered. (Code Civ. Proc., § 437c, subd. (b)(4) [“The reply shall not include any ... separate statement submitted with the reply and not presented in the moving papers or opposing papers”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute” for a “reply separate statement”].)

Defendants Dean Albert Le, M.D., and Saddleback Valley Neuroscience Medical Group dba Saddleback Neurology shall give notice of all rulings made this date.

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