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ANN H. LARSON, ESQ. (State Bar No. 176461)
JOHN C. WON, ESQ. (State Bar No. 242743)
CRADDICK, CANDLAND k, CONTI
A Professional Corporation ELECTRONICALLY
2420 Camino Ramon, Suite 202
San Ramon, CA 94583-4202 F I L E D
Superior Court of California,
Telephone: (925) 838-1100 County of San Francisco
Facsimile: (925) 743-0729
E-mail:alarson ccclawfirm.com; 02/13/2020
Clerk of the Court
BY: ANNA TORRES
Deputy Clerk
Attorneys for Defendants,
REGENTS OF THE UNIVERSITY Ol""
CALIFORNIA and JENNIFER RUTI-I ROSE-
NUSSBAUMER, M.D.
10
IN THE SUPERIOR COURT OF TI-IE STATE OI CALIFORNIA
12 IN AND FOR THE COUNTY OF SAN FRANCISCO
13 MELANIE L. SIEMON, Case No. CGC-18-564487
14 Plaintiff, MOTION FOR NONSUIT
15
16 REGENTS OF THE UNIVERSITY OF
CALIFORNIA, JENNIFER RUTH ROSE-
17 NUSSBAUMER, M.D., and does 1 through
25
Defendants.
20
Defendant REGENTS OF THE UNIVERSITY OF CALIFORNIA (" REGENTS" )
21
submits this motion for nonsuit on the grounds that, as a matter of law, plaintiff's evidence is
insufficient to sustain her burden of proof at trial as to her sole cause of action for medical
23
negligence. Pursuant to pre-trial motions, plaintiff's sole medical expert, Dr. Michael Reynard,
24
is precluded from offering opinion testimony as to breach and causation.
I'roof of a breach of the standard of care by a physician requires testimony from medical
experts, as does proof that the injury was caused by the negligence. Keen v. Prisinzano (1972)
27
23 Cal.App.3d 275, 279; Jennin s v. Palomar Pomerado I-Iealth S stems Inc. et al. (2003) 114
28
Cal.App.4th 1108; Bushlin v. Fremont Medical Center (2004) 117 Cal.App.4'" 493. Therefore,
the present motion for nonsuit should be granted following plaintiff's opening statement.
A NONSUIT MUST BE GRANTED WHERE THERE IS NO
EVIDENCE OF SUFFICIENT SUBSTANTIALITY TO SUPPORT A
VERDICT IN FAVOR OF PLAINTIFF
Code of Civil Procedure, Section 58lc, provides:
(a) Only after, and not before, the plaintiff has completed his or her opening
statement, or after the presentation of his or her evidence in a trial by jury, the
defendant, without waiving his or her right to offer evidence in the event the
motion is not granted, may move for a judgment of nonsuit.
10
To prevail against a motion for nonsuit, plaintiffs evidence must support a logical
inference in her favor, sufficient to raise more than a mere conjecture or surmise. ~Re nolds v.
Natural Gas E ui ment (1960) 184 Cal.App.2d 724, 731, 7 Cal.Rptr. 879. If the existence of an
12
essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the
13
burden rests to establish that fact should suffer, and not her adversary. A judgment cannot be
14
based on guess or conjecture. Substantial evidence is required to establish each essential
15
affirmative allegation — a scintilla of evidence is not sufficient for that purpose. Thus, the
16
burden is upon plaintiff to establish that defendant had some duty to plaintiff and breached it,
17
and that such breach was the proximate cause of the injury; if there is no evidence of substance
18
tending to prove the controverted facts necessary to establish the plaintiffs case, the Motion for
19
Nonsuit isin order. Guillo v. American President Lines Ltd. (1964) 230 Cal.App.2d 296,302,
20
40 Cal.Rptr. 796.
21
A non-suit may not be denied merely because there is testimony which may make out a
22
prima facie case for plaintiff, when considered out of context, or when predicated upon
23
hypothetical facts unsupported by the evidence. It is not a question ot'whether a jury may return
24
a verdict for the plaintiff, but whether such a verdict, if returned, finds support in the records and
25
may be permitted to stand, keeping in mind the issues and what it is that plaintiff must prove. It
26
is not simply a matter of authority, but of the court's duty to grant a non-suit in a proper case.
27
Cassell v. McGuire Bc Hester (1960) 187 Cal.App.2d 579, 589, 10 Cal.Rptr. 33.
28
THE PRESENT MOTION SHOULD BE GRANTED BECAUSE
PLAINTIFF DOES NOT HAVE AN EXPERT TO ESTABLISH
BREACH AND CAUSATION AT TRIAL.
The elements of a cause of action for medical negligence are: (I) the duty of the
4
professional to use such skill, prudencc, and diligence as other members of his profession
5
commonly possess and exercise; (2) a breach of that duty; (3) a causal connection between the
6
7
(1982) 31 Cal.3d 220, 229-230„citing Budd v. Nixen (1971) 6 Cal.3d 195, 200.
In actions based on medical malpractice, expert testimony is required to prove these
9
prima facie elements, unless the facts of the particular care are susceptible to comprehension by
10
a lay juror. Landeros v. Flood (1976) 17 Cal.3d 399, 410; Cobbs v. Grant (1972) 8 Cal.3d 229,
11
236-237; Huffman v. Lind uist (1951) 37 Cal.2d 465, 473. Proof of a brcach of the standard of
12
care by a physician requires testimony from medical experts, as does proof that the injury was
13
caused by the negligence. Keen v. Prisinzano (1 972) 23 Cal.App.3d 273, 279; ~Jcnnin 's v.
14
Palomar Pomerado Health 8 stems inc. et al.(2003) 114 Cal.App.4th 1108; ~Bushtin v.
15
Fremont Medical Center (2004) 117 Cal.App.4" 493.
16
In the instant case, plaintiff cannot meet hcr burden of prool'because she docs not have a
17
qualified medical expert who can competently opine as to brcach and causation. Therefore, thc
18
present motion for nonsuit should be granted.
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20
22
23
24
25
Ol'1 plaintiff
Dated:
For thc I'oregoing reasons,
s opening statement.
'Z/73/ad ger
CONCLUSION
Defendant, REGEN"I S
CALIFORNIA, respectf'ully requests that thc Court to grant this motion
CRADDICK,
Ol'I'I I
H.
CA
I"."
I.ARSON
UN
BLAND
I V I.RSI'I'Y
I'or non-suit
k CONTI
I'ollowing
26 IIN C. WON
Attorneys for Dcl'cndants,
27 REGEN'I'S OI'l-IE UNIVERSITY OF
CALII ORNIA and .IENNII I"R RUTI I ROSE-
28 NUSSBAUMER, M.D,
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ANN H. LARSON, ESQ. (State Bar No. 176461) JOHN C. WON, ESQ. (State Bar No. 242743) CRADDICK, CANDLAND k, CONTI A Professional Corporation ELECTRONICALLY 2420 Camino Ramon, Suite 202 San Ramon, CA 94583-4202 F I L E D Superior Court of California, Telephone: (925) 838-1100 County of San Francisco Facsimile: (925) 743-0729 E-mail:alarson ccclawfirm.com; 02/13/2020 Clerk of the Court BY: ANNA TORRES Deputy Clerk Attorneys for Defendants, REGENTS OF THE UNIVERSITY Ol"" CALIFORNIA and JENNIFER RUTI-I ROSE- NUSSBAUMER, M.D. 10 IN THE SUPERIOR COURT OF TI-IE STATE OI CALIFORNIA 12 IN AND FOR THE COUNTY OF SAN FRANCISCO 13 MELANIE L. SIEMON, Case No. CGC-18-564487 14 Plaintiff, MOTION FOR NONSUIT 15 16 REGENTS OF THE UNIVERSITY OF CALIFORNIA, JENNIFER RUTH ROSE- 17 NUSSBAUMER, M.D., and does 1 through 25 Defendants. 20 Defendant REGENTS OF THE UNIVERSITY OF CALIFORNIA (" REGENTS" ) 21 submits this motion for nonsuit on the grounds that, as a matter of law, plaintiff's evidence is insufficient to sustain her burden of proof at trial as to her sole cause of action for medical 23 negligence. Pursuant to pre-trial motions, plaintiff's sole medical expert, Dr. Michael Reynard, 24 is precluded from offering opinion testimony as to breach and causation. I'roof of a breach of the standard of care by a physician requires testimony from medical experts, as does proof that the injury was caused by the negligence. Keen v. Prisinzano (1972) 27 23 Cal.App.3d 275, 279; Jennin s v. Palomar Pomerado I-Iealth S stems Inc. et al. (2003) 114 28 Cal.App.4th 1108; Bushlin v. Fremont Medical Center (2004) 117 Cal.App.4'" 493. Therefore, the present motion for nonsuit should be granted following plaintiff's opening statement. A NONSUIT MUST BE GRANTED WHERE THERE IS NO EVIDENCE OF SUFFICIENT SUBSTANTIALITY TO SUPPORT A VERDICT IN FAVOR OF PLAINTIFF Code of Civil Procedure, Section 58lc, provides: (a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit. 10 To prevail against a motion for nonsuit, plaintiffs evidence must support a logical inference in her favor, sufficient to raise more than a mere conjecture or surmise. ~Re nolds v. Natural Gas E ui ment (1960) 184 Cal.App.2d 724, 731, 7 Cal.Rptr. 879. If the existence of an 12 essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the 13 burden rests to establish that fact should suffer, and not her adversary. A judgment cannot be 14 based on guess or conjecture. Substantial evidence is required to establish each essential 15 affirmative allegation — a scintilla of evidence is not sufficient for that purpose. Thus, the 16 burden is upon plaintiff to establish that defendant had some duty to plaintiff and breached it, 17 and that such breach was the proximate cause of the injury; if there is no evidence of substance 18 tending to prove the controverted facts necessary to establish the plaintiffs case, the Motion for 19 Nonsuit isin order. Guillo v. American President Lines Ltd. (1964) 230 Cal.App.2d 296,302, 20 40 Cal.Rptr. 796. 21 A non-suit may not be denied merely because there is testimony which may make out a 22 prima facie case for plaintiff, when considered out of context, or when predicated upon 23 hypothetical facts unsupported by the evidence. It is not a question ot'whether a jury may return 24 a verdict for the plaintiff, but whether such a verdict, if returned, finds support in the records and 25 may be permitted to stand, keeping in mind the issues and what it is that plaintiff must prove. It 26 is not simply a matter of authority, but of the court's duty to grant a non-suit in a proper case. 27 Cassell v. McGuire Bc Hester (1960) 187 Cal.App.2d 579, 589, 10 Cal.Rptr. 33. 28 THE PRESENT MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF DOES NOT HAVE AN EXPERT TO ESTABLISH BREACH AND CAUSATION AT TRIAL. The elements of a cause of action for medical negligence are: (I) the duty of the 4 professional to use such skill, prudencc, and diligence as other members of his profession 5 commonly possess and exercise; (2) a breach of that duty; (3) a causal connection between the 6 7 (1982) 31 Cal.3d 220, 229-230„citing Budd v. Nixen (1971) 6 Cal.3d 195, 200. In actions based on medical malpractice, expert testimony is required to prove these 9 prima facie elements, unless the facts of the particular care are susceptible to comprehension by 10 a lay juror. Landeros v. Flood (1976) 17 Cal.3d 399, 410; Cobbs v. Grant (1972) 8 Cal.3d 229, 11 236-237; Huffman v. Lind uist (1951) 37 Cal.2d 465, 473. Proof of a brcach of the standard of 12 care by a physician requires testimony from medical experts, as does proof that the injury was 13 caused by the negligence. Keen v. Prisinzano (1 972) 23 Cal.App.3d 273, 279; ~Jcnnin 's v. 14 Palomar Pomerado Health 8 stems inc. et al.(2003) 114 Cal.App.4th 1108; ~Bushtin v. 15 Fremont Medical Center (2004) 117 Cal.App.4" 493. 16 In the instant case, plaintiff cannot meet hcr burden of prool'because she docs not have a 17 qualified medical expert who can competently opine as to brcach and causation. Therefore, thc 18 present motion for nonsuit should be granted. 19 20 22 23 24 25 Ol'1 plaintiff Dated: For thc I'oregoing reasons, s opening statement. 'Z/73/ad ger CONCLUSION Defendant, REGEN"I S CALIFORNIA, respectf'ully requests that thc Court to grant this motion CRADDICK, Ol'I'I I H. CA I"." I.ARSON UN BLAND I V I.RSI'I'Y I'or non-suit k CONTI I'ollowing 26 IIN C. WON Attorneys for Dcl'cndants, 27 REGEN'I'S OI'l-IE UNIVERSITY OF CALII ORNIA and .IENNII I"R RUTI I ROSE- 28 NUSSBAUMER, M.D,