BRADLEY HARDING, et al. v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.

(Beverly Hills Courthouse: Dept. 205) September 10, 2026 DEPARTMENT 205 LAW AND MOTION RULINGS

County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 BRADLEY HARDING, et al., Plaintiff s, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendant s. | Case No.: 2 4SMCV0 4065 Hearing Date: September 10, 202 6 [TENTATIVE] order RE: Defendan T S' motion S for summary judgment | BACKGROUND This is a medical malpractice case.

Plaintiff Bradley Harding underwent a procedure to correct his semicircular canal dehiscence (SSCD) of the left ear. (Separate Statement of Undisputed Material Facts ("SSUMF"), No. 2.) The surgery was performed by Dr s. Quinton Gopen and Isaac Yang at UCLA. (Id.) As part of the procedure, metal plates were placed into Mr. Harding at the point of incision. (SSUMF No. 5.) Mr. Harding was given antibiotics prior to surgery but not after surgery. (SSUMF Nos. 4, 8.)

Mr. Harding subsequently developed a post-operative infection. A CT scan revealed bacterial infection in and around the incision area. (SSUMF No. 17.) On June 12, 2023, Mr. Harding had a follow-up appointment with Dr. Gopen. During this appointment, Dr. Gopen cleaned out Mr. Harding's ear canal which had a buildup of cerumen and debris. (SSUMF No. 14.)

Mr. Harding subsequently had a clean-up procedure performed by Dr. Gopen, during which Dr. Gopen discovered a pocket of infection next to the metal plate on top of the skull. The infected material was cleaned out, and the hardware (both the plate and screws) were removed. (SSUMF No. 19.) The area was washed out with sterile fluid, and cleaning continued down to the bone wax layer. (Id.) Following the procedure, Mr. Harding was prescribed antibiotics. (SSUMF No. 21.)

Mr. Harding has sued Dr s. Gopen, Yang and UCLA for medical malpractice, and his wife, Sweeny Harding has sued them for loss of consortium. Mr. Harding alleges that Dr s. Gopen and Yang's failure to prescribe antibiotics upon discharge from the hospital and to prevent contamination of the metal plate breach ed the standard of care. Mr. Harding also alleges that Dr. Gopen's failure to diagnose him with an infection and prescribe antibiotics at his June 12 follow up appointment also breached the standard of care.

This hearing is on Defendants ' motion for summary judgment as to Mr. Harding's professional negligence claim. Defendants have submitted a declaration from their expert, Dr. Bradley Hatch, who opines that the care and treatment provided by Defendants to Mr. Harding complied with the standard of care and that no act or omission on Defendants' part caused or contributed to Mr. Harding's injuries.

LEGAL STANDARD " [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, 85 0.)

" [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. " (Id.)

" On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. " (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 83 9 ¿[cleaned up].)¿

Further, " the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. " (Id. at 84 0 ¿[cleaned up]; see also¿Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 86 4 ¿[" Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party "].)

EVIDENTIARY OBJECTIONS The Court sustains Plaintiff s' Objection No. 1 to the original Declaration of Dr. Hatch and overrules Plaintiffs' Objection Nos. 2- 25. The Court overrules Plaintiffs' objection to the amended Declaration of Dr. Hatch.

DISCUSSION Section 2015.5 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, 61 2.)

" [T]he legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that physicians and surgeons 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 physician ' s actions, unless some deviation by the physician 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, 108 1 ¿[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, 41 0 ¿[" 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 (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman "].)¿

As the Court of Appeal has held, in reversing summary judgments for medical professionals: " 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. 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, 606-60 7 ¿[cleaned up].)

Defendants rely on the declaration of Dr. Hatch. (Hatch Decl. P. 1.) Plaintiff argues that the entire declaration is inadmissible because Dr. Hatch did not sign it under penalty of perjury under the laws of the state of California. In reply, Defendants argue that the error was inadvertent, and they have filed a corrected declaration from Dr. Hatch. Defendants also cite to two appellate court cases stating that the Court can overlook a violation of section 2015.5 if it is corrected prior t o the hearing. The Court agrees with Defendants.

Any statement not made by a witness testifying in court before the fact finder constitutes hearsay evidence when offered for its truth.¿(Evid. Code, Sec. 1200, subd. (a) .) Notwithstanding, in limited kinds of judicial proceedings, hearsay evidence may be used. Such is the case with motions for summary judgment. (See¿ Sec. 437c, subds. (a) ¿& (c).) T he summary judgment statute authorizes "affidavits" and "declarations" to support and oppose such motions.¿(Sec. 437c, subd. (b)(1) ¿& (2) .) However, the declaration must meet certain requirements, including those set forth in Cal. Civ. Proc. Code section 2015.

5.

That section a llows use of "unsworn" declarations made under penalty of perjury whenever state law "require[s] or permit[s]"¿facts to be evidenced by affidavits or other "sworn" statements. (Id.)¿ Section 2015. 5 ¿provides that an unsworn declaration "executed ...¿ without this state " is competent and admissible to the same extent as an affidavit or other sworn statement if the unsworn declaration includes four elements: (1) a certification or declaration that it is "true under penalty of perjury," (2) the " subscri [ption]" of the declarant, (3) a statement of the "date of execution," and (4) a statement that such certification or declaration occurs " under the laws of the State of California." (Id.)¿

O ut-of-state declarations that do not comply with section 2015. 5 " are not deemed sufficiently reliable " to support or oppose a motion for summary judgment. (Kulshrestha v. First Union Com. Corp. (2004) 33 Cal. 4th 601, 611.) Here, Dr. Hatch 's declaration states that it was executed in Heber City, Utah and was made "under penalty of perjury under the laws of Utah," not California. However, Defendants have now submitted a corrected version of Dr. Hatch's declaration which references the laws of California.

Plaintiff's authority does not address the situation where a party fixes a violation of section 2015.5 before the hearing. In Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606, the California Supreme Court decided the narrow question of whether "substantial compliance" with section 2015.5 was sufficient to render a declaration admissible. Kulshrestha ruled it did not. However, Kulshrestha did not address whether a trial court may permit amendment of a declaration to correct a violation of section 2015.5 before the hearing.

Since Kulshrestha, California Courts of Appeal that have considered this issue have concluded that a trial court may consider such an amended declaration. (See Gall v. Smith & Nephew, Inc. (2021) 71 Cal.App.5th 117, 125; Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, 1422.) Plaintiff argues that Gall and Finkbeiner were decided before the recent amendment to Cal. Code Civ. Proc. Sec. 437c(b)(4) which that states that a reply "shall not include any new evidentiary matter . . . not presented in the moving papers or opposing papers" . But this proposition is not new. The caselaw has been well-settled that a reply cannot include new evidentiary matter, and it was the case when Gall and Finkbeiner were decided.

Further, the amended declaration of Dr. Hatch is not new evidentiary matter. It contains the exact same opinions as his prior declaration. The only change is that he now declares he is testifying under penalty of perjury under the laws of the State of California. This change does not deprive Plaintiff of due process, because Plaintiff always understood Dr. Hatch's substantive opinions, and in fact, Plaintiff addresses them in his opposition and evidentiary objections.

Dr. Hatch's Qualifications Plaintiff argues that Dr. Hatch is not qualified to offer opinions in this case because he has not stated he is familiar with the stand ard of care for performing SCCD repair s. The Court disagrees. Dr. Hatch attests that he received training and practices as a n eurotologist/ o tolaryngologist. An otolaryngologist, or ENT, is a healthcare specialist who treats conditions affecting the ears, nose and throat. They can also perform head and neck surgeries, including surgeries on the ears, mouth, throat, nose, neck and face.

Neurotology is a subspecialty within otolaryngology. Neurotologists undergo rigorous fellowship training beyond their initial ENT residency. They deal with the complex anatomy of the inner ear, the temporal bone, and the neural pathways connecting these structures to the brain. Neurotologists manage conditions that general ENTs might refer due to their complexity or the need for advanced surgical intervention. Given Dr. Hatch's training and background, the Court concludes he is qualified to testify about the standard of care relevant to this case even if he does not explicitly state that he has performed SCCD repairs.

It has been recognized that a physician may be qualified to give expert testimony even though the physician is not of the same specialty as a defendant doctor: " Where the allegations of negligence concern matters within the knowledge and observation of every physician and surgeon and ' not to a special course of treatment to be tested by the teachings and doctrines of a particular school, ' the testimony of a non-specialist physician can still aid the trier of fact in its search for the truth. [Citation.] " (Miller v. Silver (1986) 181 Cal.App.3d 652, 661.)

The sole case Plaintiff relies on to argue that Dr. Hatch is required to have performed the exact same procedure does not support his position. In fact, the holding in Avivi v. Centro Medico Urgente Med. Ctr., 159 Cal. App. 4th 463, 465 (2008), as modified (Jan. 24, 2008) supports the contrary result. Avivi involved the exclusion of a plaintiff's expert because he did not practice in the United States. The Court of Appeal reversed the trial court's exclusion, concluding that "w hile the qualification of an expert witness requires exercise of trial court discretion, the court abuses its discretion by denying qualification if the witness has demonstrated sufficient knowledge of the subject to entitle his or her opinion to go before the jury."

The Avivi court further noted that "[o ver 30 years ago, our Supreme Court observed that "[t]he unmistakable general trend ... has been toward liberalizing the rules relating to the testimonial qualifications of medical experts." (159 Cal.App.4 th at 472 (citing Brown v. Colm, 11 Cal.3d at 645.).) Moreover, as Plaintiff notes, Avivi held that "the appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of [the defendant]." It does not say that the expert must be familiar with the identical circumstances.

Lack of Foundation Plaintiff argues that Dr. Hatch's declaration fails to explain the standard of care or why Defendants met the standard of care. Plaintiff argues that Dr. Hatch's concl usions that Defendants complied with the standard of care and that no act or omission on their part caused or contributed to Plaintiff's injuries are " conclusory statements do not adequately establish that Dr. Yang complied with the standard of care to meet Dr. Yang's high burden on summary judgment. "

Plaintiff's arguments ignore the other portions of Dr. Hatch's declaration that detail the standard of care and how Defendants' actions met that standard. For example, in relation to Plaintiff's complaint that he was not prescribed antibiotics after his surgery, Dr. Hatch attests that "[i]is not standard of care to prescribe post-operative antibiotics. Antibiotics are not prescribed post-operatively, as the surgery is considered a clean procedure. The surgery is performed in a sterile environment. As a result, Dr. Yang complied with the standard of care in not prescribing antibiotics post-operatively."

Dr. Hatch further opines that "it would be a breach in the standard of care to prescribe post-operative antibiotics in the absence of any infectious signs or symptoms. According to neurosurgical ENT and infectious Disease guidelines, antibiotics should not be used unless indicated. Overuse of antibiotics can have side effects so they should only be used as indicated. As a result, the standard of care was met in the decision to not prescribe the patient post-operative antibiotics."

In relation to Plaintiff's complaint that Dr. Gopen should have detected an infection and treated it at a follow up visit, Dr. Hatch opines that Dr. Gopen acted within the standard of care because " [t] here were no signs or symptoms of infection. Drainage is a natural finding after surgery and does not indicate infection in and of itself. "

In sum, by submitting the declaration of Dr. Hatch, Defendants met their initial burden of showing the nonexistence o f any triable issue of material fact. Plaintiff's objections to the Hatch declaration are without merit. The burden therefore shifted to Plaintiff to make his own prima facie showing of the existence of a triable issue of fact. As Plaintiff did not submit any declaration from a rebuttal expert, Plaintiff failed to meet his burden, and summary judgment should is appropriate.

CONCLUSION Based on the foregoing, the Court GRANT S Defendants ' motion s for summary judgment. IT IS SO ORDERED. DATED: September 10, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 24SMCV04081 Hearing Date: September 10, 2026 Dept: 205 Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 PETER STEINLAUF, Plaintiff, v. RT ABBOTT CONSTRUCTION, INC., et al., Defendant s. | Case No.: 2 4 SMCV0 4081 Hearing Date: September 10, 202 6 [TENTATIVE] ORDER RE: D EFENDANT CRYSTAL CLEAR GLASS, INC.'S AMENDED APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION | BACKGROUND This is a construction defect case.

Plaintiffs are the owners of a residential property located at 2201 Duxbury Circle, Los Angeles, CA ("Property") . Plaintiffs hired RT Abbot Construction, Inc. as the g eneral c ontractor to demolish their existing house and construct a new ho me with additional hardscape and landscape. Plaintiffs also hired Clearflo Pools, Inc. to build a pool on the property, and Clear Glass, Inc. to install glass railings at the P roperty, including at the pool and the balconies and decks of the house.

Plaintiffs have sued Abbott, Clear Glass and others, alleging causes of action for Breach of Contract, Negligence, Breach of Implied Warranty, Intentional Misrepresentation, Negligent Misrepresentation, and Strict Products Liability. The only causes of action asserted against Clear Glass are Breach of Contract, Negligence, and Breach of Implied Warranty.

Abbott filed a Cross-Complaint against Clear Glass and other sub-contractors (the subcontractor cross-defendants), alleging causes of action for Express Indemnity, Equitable Indemnity, Implied Indemnity, Breach of Contract Defense, Breach of Implied Warranty, Breach of Express Warranty, Declaratory Relief, and Negligence.

Plaintiffs assert a variety of construction defect s at the Subject Property, including the following claims that potentially implicate Clear Glass' work: (1) the glass railings at the pool were installed improperly and are not adequate for fall protection; (2) missing bolts in the clamps for the glass allow water to intrude into the pool trough on which the railing is mounted; and (3) the glass railings at balconies and decks are not adequate for fall protection and create a life safety condition. Plaintiffs allocate 65% of the estimated $433,098 cost to replace the glass railings throughout the property to