Motion for Summary Judgment
In contrast, here, while Defendant points to a number of actions by Plaintiff to justify her termination, Plaintiff disputes each one. [Compare Motion MPA (ROA #26) at 11-12 with Opp. (ROA #45) at 17-20; Sep. Statement nos.28-27 and evidence cited there.]
Unavoidably, there is a triable issue of fact whether Defendant would have made the same decision as to Plaintiff’s employment in the absence of her disclosures about classification and pay. Accordingly, Defendant’s motion is denied.
8. 2024-1379301 The unopposed Motion for Summary Judgment brought by Defendant Galvez vs. Ronaldo Roque, M.D. is granted. Roque “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)
In a medical malpractice action, it has consistently been held that “a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) “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.” (Id. at p. 410.)
Thus, 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.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985
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In seeking summary judgment, Defendant offers the undisputed declaration of Richard Cho, M.D., a licensed physician, board- certified in internal medicine, with nearly 30 years of experience. (¶1- ¶2 of Cho Declaration.) Dr. Cho declares he has practiced in Southern California since 2006, as a Hospitalist and is “familiar with the standard of care applicable to hospitalists such as Dr. Roque, in
providing care and treatment for patients such as Gregorio Mercado, Jr....” (¶2 and ¶4 of Cho Declaration.)
In addition to the above, Dr. Cho identifies the materials reviewed and relied on to form his opinion. (¶5 of Cho Declaration.)
Plaintiff does not object to Dr. Cho’s qualifications as an expert or the foundation of his opinions.
Following a detailed recitation of the facts (¶6(a)-(v) of Cho Declaration), Dr. Cho declares “[i]t is my opinion based on my education, training, and experience and my review of the medical records and documents referred to above, that the care and treatment provided by hospitalist Ronald Roque, M.D., to the decedent Gregorio Mercado, Jr., at all times met the standard of care of a hospitalist practicing in the State of California in 2023.” (¶8 of Cho Declaration.) “Dr. Roque appropriately consulted both general surgery and gastroenterology, and both Dr. Tekeste and Dr. Joseph-Brown continued to follow the decedent throughout the admission.” (¶10 of Cho Declaration.) “It was appropriate for Dr. Roque to defer treatment of gastroenterology issues and surgical issues to the specialists, as was done in this case.” (¶11 of Cho Declaration.)
In addition to the above, “[t]he law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.)
Relevant to causation, Dr. Cho declares: “It is my further opinion, to a reasonable medical probability, that nothing Dr. Roque did or failed to do caused or contributed to the death of the decedent or any injury alleged by plaintiff. My opinion is bolstered by the evidence, and all of the following opinions are made to a reasonable degree of medical probability.” (¶12 of Cho Declaration.) “During the admission, there was no evidence from the CT scan performed on 2/13/23 and subsequent x-ray on 2/14/23 showing evidence of perforation.
Therefore, there was nothing that Dr. Roque, as the hospitalist, needed to do that would have made any difference in the outcome.” (¶13 of Cho Declaration.) “Furthermore, even if there was evidence of diverticulitis or perforation, there was nothing that Dr. Roque could have done differently that would have diagnosed the perforation any earlier as the surgeon was already working up the decedent to rule out perforation.” (¶14 of Cho Declaration.)
Based on the above, Defendant demonstrated that required elements of Plaintiff’s claim for medical malpractice cannot be established (i.e. breach of the standard of care and causation).
As the above declaration is undisputed and, as Plaintiff has not submitted conflicting expert evidence, Defendant is entitled to summary judgment on Plaintiffs’ claim for medical malpractice. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985; See also Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412; and Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.)
11. 2023-1355588 Plaintiff Aziz Damak’s Motion for Alternate Service of Summons Damak vs. For Last Remaining Defendant is denied. Patel Plaintiff moves, under CCP sections 413.30 and 415.50, for an order “authorizing alternate service” on Defendant Anthony Burton. When serving an individual within this state, the Code provides five different methods of service: (1) personal service (§ 415.10); (2) substitute service (§ 415.20); (3) acknowledgement of receipt of summons by regular mail with return acknowledgment of receipt (§ 415.30); (4) and, service by publication (§ 415.50).
Generally, “in order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417.) “Actual notice” is not sufficient to obtain personal jurisdiction over the defendant where the method of service is “totally outside the statutory prescriptions.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 415 [rejecting argument that, if “somehow [service] resulted in actual notice to the defendant in time to defend the action, then any defects in the manner of service should be overlooked”]; see also American Express Centurion Bank v.
Zara (2011) 199 Cal.App.4th 383, 392 [“Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction”].)
Here, Plaintiff has not shown relief under CCP section 413.30 is available. The statute provides, in relevant part, that:
If no provision is made in this chapter or other law for the service of summons, or if a plaintiff, despite exercising reasonable diligence, has been unable to effect service of the summons by any of the methods authorized under this chapter, the court in which the action is pending may, upon motion, direct that summons be served in a manner that is reasonably calculated to give actual notice to the party to be served, including by electronic mail or other electronic technology, and that proof of such service be made as prescribed by the court. (Code Civ. Proc., § 413.30, subd. (a)(1), emphasis added.)
To establish “reasonable diligence,” the plaintiff must “set forth facts detailing all attempts to serve the defendant by each of the methods prescribed by statute, including facts demonstrating why