Motion for Summary Judgment and/or Adjudication
Procedure section 1987.1 or Code of Civil Procedure section 2025.480. (Unzipped Apparel, supra, 156 Cal.App.4th at pp. 135- 136.)
Here, defendant served the subject subpoena on nonparty deponent Luz Elena Cano, M.D. (Dr. Cano) on 11/12/24. (Furukawa Decl. ¶ 3, Ex. 1.) The subpoena specified a production date of 12/3/24. (Id. at Ex. 1.) No objections were served and Dr. Cano failed to comply. (Id. ¶¶ 4, 7-8.) Defendant was therefore required to bring this motion within 60 days of the production date, or by no later than Monday 2/4/25. (Code Civ. Proc., § 2025.480, subd. (b); see id., §§ 12-12b [computation of time]; Unzipped Apparel, supra, 156 Cal.App.4th at pp. 127, 134-136.) Defendant failed to bring this motion until January 2026, well past this deadline.
Defendant shall give notice.
4 Ybarra vs. Hoag Motion for Summary Judgment and/or Memorial Hospital Adjudication Presbyterian Defendant Morris Ahdoot, M.D.’s Motion for 2023-01367255 Summary Judgment is GRANTED.
Defendant’s Objections to the Declaration of Dr. Howard Mendel:
Objection Nos. 1-4 are SUSTAINED.
The elements of a cause of action for medical negligence are as follows: (1) Duty of 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 negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 468 fn. 2.)
A defendant moving for summary judgment bears an initial burden of producing
admissible evidence sufficient to show that the plaintiff’s action has no merit; i.e., that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (CCP § 437c(a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (
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In the context of medical malpractice, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969 (internal citations and quotation marks omitted).)
“[T]o testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.)
Standard of Care
With regard to the standard of care and causation, Defendant submits the expert declaration of Dr. Michael Nageotte. Dr. Nageotte is a Diplomate of the American Board of Obstetrics & Gynecology since 1984 and the American Board of Maternal Fetal Medicine since 1985, and is licensed to practice medicine in the State of California. Dr. Nageotte opines that Dr. Ahdoot at all times complied with the applicable standard of care, and he did not cause or contribute to any of Plaintiff Ybarra’s injuries.
The burden then shifts to Plaintiff to submit expert evidence demonstrating a triable issue of material fact as to the standard of care, causation, and damages. (Code Civ. Proc. §
437c(p)(2).) To make that showing, Plaintiff submits the expert declaration of Dr. Howard Mandel.
Dr. Mandel provides an opinion contrary to Dr. Nageotte and concludes that Dr. Ahdoot failed to act within the standard of care and/or take any steps with respect to the totality of the circumstances and the management of Ms. Penaloza’s labor.
Plaintiff, however, has failed to submit or authenticate any of the records reviewed by Dr. Mandel. “Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule. Evidence Code section 1271 states the business records exception to the hearsay rule: ‘Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.’” (Garibay v.
Hemmat (2008) 161 Cal.App.4th 735, 742.)
Without those medical records or other documents reviewed by Dr. Mandel before the court, and without testimony providing for authentication of such records, Dr. Mendel’s declaration has no evidentiary basis. (Ibid.) “Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact.” (Id. at 743.) Consequently, Dr. Mendel’s declaration does not raise a triable issue of fact as to standard of care.
Causation
“[M]edical causation can only be determined by expert medical testimony. [Citations.]” (Salasguevara v. Wyeth Laboratories, Inc.
(1990) 222 Cal.App.3d 379 at 385. “In much the same way that laymen are not qualified to judge whether a doctor has been negligent because of their lack of common knowledge on the subject, they also are not qualified from a medical standpoint to determine the effects of the 'negligent' acts on the plaintiff.” (Barton v. Owen (1977) 71 Cal.App.3d 488 at 506.) “Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.].’” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.)
Dr. Mandel failed to cite any evidence to support his opinion that Plaintiff Ybarra suffered hypoxia and permanent injuries during labor. Thus, even assuming a breach of the standard of care, Dr. Mendel’s opinion on causation is purely speculative and not supported by any evidence that such an injury occurred.
Without a competent expert declaration for the Court to consider, Plaintiff cannot meet her burden of demonstrating that a triable issue of material fact exists as to her claim for medical negligence against Dr. Ahdoot.
Additionally, without a negligent act by Dr. Ahdoot, Gloria Penaloza and Steve Ybarra cannot state a cause of action for negligent infliction of emotional distress.
Because the motion disposes of all the claims brought by Plaintiffs against Defendants, summary judgment is appropriate. (Civ. Proc. Code 437c, subd. (c); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954.)
Moving Party shall give notice.