Motion-Secondary: Medina et al -v- Barstow Community Hospital et al Print

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                                Jack M. Schuler, Esq.         (SBN 90899)
     SCHULER & BROWN                                                           ELECTRONICALLY FILED (Autc           >)


     5850 Canoga Avenue, Suite 400                                             SUPERIOR COURT OF CALIFC bRNIA
     Woodland Hills, California 91367
                                                                               COUNTY OF SAN BERNARDIN O
                                                                               4/1   2/2024 9:54   AM
     TEL: (818) 756-0999
     FAX:   (8 1 8)     756-0998


     Attorneys for Defendant,
     Barstow Health Partners




                             SUPERIOR COURT OF THE STATE OF CALIFORNIA


                                        COUNTY OF SAN BERNARDINO
10

11


12   RAMIRO MEDINA, CONCEPTION MEDINA                          Case No. CIV SB 2128957
                                                               Complaint filed: December 21, 2021
13                        Plaintiffs,                          Assigned t0 Hon. Corey G. Lee
                                                               Div. SIS
14           V.
                                                               DEFENDANT BARSTOW HEALTH
15   éARSTOW COMMUNITY HOSPITAL;                               PARTNERS’ REPLY TO
     BARSTOW HEALTH PARTNERS; RAO V.                           PLAINTIFFS’ OPPOSITION TO
16   DALUVOY, M.D.;            and   DOES   1   t0 100,        BHP’S MOTION FOR SUMMARY
     inclusive,                                                ADJUDICATION OF ISSUES;
17                                                             MEMORANDUM OF POINTS AND
                          Defendants.                          AUTHORITIES OFFERED IN
18                                                             SUPPORT THEREOF
19                                                             Date: April 18, 2024
                                                               Time: 8:30 a.m.
20                                                             Dept: S-37

21                                                             Trial Date:   Pending

22

23   I.      THE PURPORTED “CONTRADICTIONS” IN DEFENDANT BHP’S EVIDENCE

24   SUPPORTING SUMMARY JUDGMENT SIMPLY DO NOT EXIST, INSTEAD

25   DEFENDANT BHP HAS PROFERRED EVIDENCE OF FACTS THAT ARE

26   CONSISTENT WITH ONE ANOTHER AND CONSTITUTE GROUNDS FOR

27   SUMMARY JUDGMENT
28           In   its   moving papers, Defendant Barstow Health Partner’s (BHP), a health     clinic,   presented


            DEFENDANT BARSTOW HEALTH PARTNERS’ REPLY TO DEFENDANT RAO DALUVOY’S
                OPPOSITION TO BHP’S MOTION FOR SUMMARY ADJUDICATION OF ISSUES
     contractual evidence that Defendant          Daluvoy was not acting                 as   an employee of the        BHP clinic
     when he treated Plaintiff Ramiro Medina, an emergency patient                            at   Barstow Community Hospital

     (BCH), an individual Who had never and has never been a patient                               at   BHP. BHP produced the

     contract between Defendant         Daluvoy and BHP, along With the separate contract between

     Defendant Daluvoy and          BCH. Through their language,                 the contracts          show that BHP permitted

     Daluvoy     t0 accept   work   outside the course and scope of his               employment            at   BHP and that BHC
     separately contracted Dr.      Daluvoy     t0   work 0n   its   own patients           (rather than     BHP’S) and

     compensated him         directly for doing s0.


             Ignoring the import 0f these two documents, Plaintiffs cite non-existent contradictions in

10   the declaration 0f Sherise Franklin, filed With the              Motion        for   Summary Judgment.              Sherise


11   Franklin,   was   the Director 0f Clinic Services for           BHP.       In that position she entered            BHP files into
12   the computer system and maintained them.                As Custodian 0f BHP                records, Sherise Franklin


13   submitted a declaration to authenticate the documents presented as evidence in this case. Rather

14   than addressing the content 0f the documents produced, Plaintiffs’ opposition focuses 0n

15   statements   made      in Sherise Franklin      Which   are perfectly consistent With one another, insisting that


16   they are contradictory.      As we Will    see,   her statements are not contradictory, but more importantly,

17   the contracts she has authenticated speak for themselves, under the Secondary Evidence Rule.


18           Other than the foundation Ms. Franklin’s declaration has laid as                              t0 the   genuineness 0f the

19   documents supporting BHP’S summary judgment motion,                            it is   not her declaration that shows that

20   Dr. Daluvoy    was working       for   Barstow Community Hospital and not Barstow Health Partners,

21   When he treated Plaintiff Ramiro Medina in the Barstow Community Hospital emergency

22   department.    It is   Dr. Daluvoy’s contract with        BHP           (Exhibit “A,” in Plaintiff s           compendium of

23   evidence) and his Call Coverage Agreement with                  BHC (Exhibit “D” in BHP’s Compendium of
24   evidence) which give rise t0 the undisputed material facts supporting                              summary      adjudication in


25   BHP’s   favor, as a matter     0f law.

26           As   the Director of Clinic Services for          BHP,          in 2020, Franklin’s duties were:             “T0 oversee

27   the operations 0f the clinic      which includes        supplies, staff, scheduling,                  EMR [Electronic Medical
28   Record].” See Deposition transcript 0f Sherise Franklin, p. 20:3-4, attached hereto as Exhibit                                    1,

                                                                 _   2   _
           DEFENDANT BARSTOW HEALTH PARTNERS’ REPLY TO DEFENDANT RAO DALUVOY’S
               OPPOSITION TO BHP’S MOTION FOR SUMMARY ADJUDICATION OF ISSUES