Preview
I Hugh S. Spackman, State Bar No. 150204
CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP
2 P.O. Box 21007
Santa Barbara, CA 93121
3 Phone: (805) 965-0043
Fax: (805) 965-8894
4
Attorneys for Defendants Kern County Hospital Authority
5 (erroneously sued as Kern Medical Center), Alexandra Neiman, M.D. &
Juan Lopez, M.D.
6
7 [No filing fee required pursuant to Govt Code§ 6103)
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10
11 CYNTHIA GONZALEZ; ALEJANDRO CASE NO. BCV-21-100289
GONZALEZ; and THE ESTATE OF Complaint Filed: 02/09/2021
12 SERGIO ARTURO GONZALEZ, by and Assigned: Hon. Bernard C. Barrnann, Jr.
through its Successors-in-Interest, CYNTHIA
13 GONZALEZ and ALEJANDRO
GONZALEZ, REPLY TO PLAINTIFFS' OPPOSITION TO
14 MOTION FOR SUMMARY
Plaintiffs, ADJUDICATION ON BEHALF OF
15 DEFENDANTS KERN COUNTY
vs. HOSPITAL AUTHORITY, ALEXANDRA
16 NEIMAN, M.D., AND JUAN LOPEZ, M.D.
KERN MEDICAL CENTER; ALEXANDRA
17 NEIMAN, M.D.; and DOES 1 through 100,
inclusive, Date: April 25, 2024
18 Time: 8:30 a.m.
Defendants. Dept.: H
19
20 [Filed concurrently with Defendants'
Objections to Plaintiffs' Evidence]
21
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
22
COMES NOW DEFENDANTS KERN COUNTY HOSPITAL AUTHORITY; ALEXANDRA
23
NEIMAN, M.D.; and JUAN LOPEZ, M.D and hereby reply to plaintiffs' opposition to defendants'
24
motion for summary adjudication as follows.
25
"Sovereign immunity is the rule in California." (Sonoma Ag Art v. Dept. Food & Agriculture
26
(2004) 125 Cal.App. 4 th 122, 125.) The Government Tort Claims Act (Gov. Code §900 et seq.)
27
("GTCA") is the statutory embodiment of this immunity for public entities in the state of California such
28
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - I
1 as these moving defendants. As explained by the Cal. Supreme Court, "the intent of the [GTCA] is not
2 to expand the right of plaintiffs in suits against governmental entities, but to confine potential
3 governmental liability to rigidly delineated circumstances: immunity is waived only if the various
4 requirements of the act are satisfied." (Williams v. Horvath (1976) 16 Cal.3d 834, 838.) The Act
5 "permits private tort actions against government entities and employees where permitted by statute, bu
6 otherwise retains the general concept of immunity for government entities." (DeJung v. Superior Court
7 (2008) 169 Cal.App.4th 533, 543 [bold added].) Since plaintiffs have failed to comply with the
8 requirements of the GTCA as to their second, third, fifth and sixth causes of action, defendants' Motion
9 for Summary Adjudication ("MSA") should be granted.
10 I. THE FOCUS OF THE COURT'S ATTENTION SHOULD BE DRAWN TO THE
FOUR CORNERS OF THE TORT CLAIM DATED APRIL 22, 2020; ALL
11 OTHER ISSUES PRESENTED BY PLAINTIFF'S OPPOSITION ARE
IMMATERIAL.
12
13 The basis for defendants' motion for summary adjudication as to the second, third, fifth and sixth
14 causes of action is that plaintiffs did not present a timely tort claim with respect to those causes of action
15 and the plaintiffs who are pursuing those causes of action. The motion does not seek to summarily
16 adjudicate the wrongful death cause of action brought by Cynthia and Alejandro Gonzalez as wrongful
17 death heirs. The simple reason is this: The April 22, 2020 tort claim presented on behalf of Cynthia and
18 Alejandro Gonzalez expressly stated a claim on their behalf as wrongful death claimants seeking
19 compensation for "wrongful death of Sergio Gonzalez and related damages" with an occurrence date of
20 February 14, 2020 (the date of death). (Def. Exh. A to MSA, page 1.)
21 The word "negligence" is nowhere mentioned in the tort claim. The tort claim does not mention
22 the Estate of Sergio Gonzalez as a claimant, does not mention survival damages or medical expenses,
23 and does not mention that it is brought on behalf of Cynthia Gonzalez for any claims other than for
24 "wrongful death of Sergio Gonzalez and related damages." The date of injury noted on the tort claim is
25 February 14, 2020-the date of Sergio Gonzalez's fetal death. (Exh A., p. 1.) There is no mention of
26 claimants being successors in interest. As such, it cannot reasonably be inferred from the tort claim,
27 even liberally construed, that any claim other than wrongful death intended to be brought by Mr. and
28
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 2
1 Mrs. Gonzalez. This is the reason why defendants' motion for summary adjudication as to all other
2 causes of action in this case must be granted.
3 The tort claim is silent on any potential Elam claim, is silent on any damages suffered other than
4 for wrongful death, and mentions nothing about emotional distress. Consequently, each of plaintiffs'
5 causes of action against moving defendants - other than for wrongful death - are barred under
6 Government Code §945.4 for failure to present a timely government tort claim to Kem County Hospital
7 Authority ("KCHA") as to those claims.
8 This fatal defect is not capable of being cured. Plaintiffs did not serve an amended tort claim,
9 and they did not seek leave to present a late claim. (UMF No. 22) Nor did they file a petition with this
10 court seeking relief from the claims presentation requirements. (UMF No. 23)
11 Defendants are therefore entitled to judgment in their favor as a matter of law as to the second,
12 third, fifth and sixth causes of action in the TAC. All other issues set forth in plaintiffs opposition brief
13 are either not material to the motion for summary adjudication or are objectionable, and do not create a
14 triable issue of fact.
15
IL DEFENDANTS HAVE MET THEIR BURDEN AND THERE IS NO TRIABLE
16 ISSUE OF FACT.
17 Summary judgment is properly granted where the evidence in support of the moving party
18 conclusively negates a necessary element of the plaintiffs case or establishes a complete defense.
19 (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 661-662.)
20 Here, defendants have met their burden of proof to show that the tort claim which plaintiffs
21 presented on April 22, 2020 does not assert any claim other than for wrongful death. It is clear from the
22 four corners of the claim itself. There is no dispute that no other tort claim was presented to KCHA in
23 this case. As such, plaintiffs cannot establish the essential element of compliance with the GTCA as to
24 any causes of actions or claimants other than for wrongful death. The opposing papers do not raise any
25 genuine factual dispute and provide no evidence that plaintiffs complied with the express requirements
26 of the GTCA. As such, defendants are entitled to sovereign immunity with respect to the causes of
27 action for which no tort claim was presented. (See Williams v. Horvath, supra, 16 Cal.3d 834, 838)
28 \\\
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 3
1 A. The Timeliness And Notice Requirements Are Not At Issue.
2 The opposing papers contain a lot of "smoke and mirrors" arguments regarding the notice
3 requirements for tort claims. Plaintiffs appear to suggest that defendants had a duty to advise plaintiffs
4 that they failed to add additional causes of action to the April 22, 2020 tort claim so that plaintiffs could
5 have timely fixed the problem. This is erroneous and contrary to the law.
6 The tort claim presented on April 22, 2020 was not insufficient under the GTCA for a wrongful
7 death claim to be asserted. As such, defendant KCHA owed no duty to plaintiffs under Gov. Code
8 section 910.8 to notify them that the tort claim, as presented, was insufficient. Indeed, for a wrongful
9 death claim, the tort claim would have been sufficient under Section 910. Moreover, plaintiffs'
10 argument that KCHA should have notified plaintiffs' counsel that they should have added more claims
11 to the tort claim or added more information to include additional claimants to the tort claim makes no
12 sense. The public entity has no duty to an adversary to encourage them to add more causes of action or
13 claimants to a tort claim.
14 B. There Are No Notice Requirements For A Cause Of Action On A Tort Claim.
15 For purposes of the motion for summary adjudication, defendants have stated in the motion that
16 they are not disputing the date of mailing of the tort claim: April 22, 2020. (UMF No. 17) The date of
17 mailing of the tort claim is not at issue here. As such, plaintiffs are mistaken as to the sole issue in
18 defendants' motion for summary adjudication being about notice requirements and the timely mailing of
19 their tort claim. (OPP, p. 4: 14-17)
20 Likewise, plaintiffs' arguments regarding substantial compliance and regarding giving "notice"
21 to the public entity and public employees of potential claims for negligence, hospital negligence, and
22 negligent infliction of emotional distress are erroneous. There is no substantial compliance with the
23 GTCA for a cause of action that is not fairly reflected in the tort claim itself. Plaintiffs' tort claim does
24 not even mention the word "negligence" anywhere in it. There is no mention of the words "emotional
25 distress" in it. There is no mention of alleged negligence in the "selection, retention or supervision of
26 medical staff' (whether doctors were named or not) to support an Elam cause of action. There is no
27 mention of a claim for survival on behalf of Sergio Gonzalez's estate. There can be no notice or
28 substantial compliance with the GTCA when these words are nowhere to be mentioned in the tort claim.
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 4
1 Moreover, in City ofSan Jose v. Superior Court (1974) 12 Cal.3d 447, the court said: "It is not
2 the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide
3 the public entity sufficient information to enable it to adequately investigate claims and to settle them, if
4 appropriate, without the expense oflitigation. [Citations.] It is well-settled that claims statutes must be
5 satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.
6 Such knowledge - standing alone - constitutes neither substantial compliance nor basis for estoppel.
7 [Citations.]" (Id at p. 455.) Here, it was not clear until plaintiffs filed their Superior Court complaint
8 that they intended to assert anything other than a claim for wrongful death.
9 Damages for wrongful death are very specific and provided by statute. (Code Civ. Proc. section
10 377.60) So a tort claim that states it is for "wrongful death .... and related damages" is one for damages
11 under Code Civ. Proc. section 377.60. A survival cause of action cannot be reasonably considered to be
12 one for "related damages" under the wrongful death statute. This is because a survival claim arises out
13 of a dffferent primary right and involves a different plaintiffthan one for wrongful death. (See
14 Dominguez v. City ofAlhambra (1981) 118 Cal.App.3d 237.)
15 This case is analogous to Fall River Joint Unified School Dist. v. Superior Court ( 1988) 206
16 Cal.App.3d 431 [hereinafter Fall River District], where the court held that a student's suit against a
17 school district, as a result of being struck by a steel door, could not contain a cause of action for the
18 alleged negligent supervision of students engaged in dangerous horseplay, as the negligent supervision
19 theory was not contained in plaintiffs tort claim. The tort claim only alleged negligent maintenance of
20 the steel door, so the plaintiff was limited in her negligence theory that could be pursued at trial. Since
21 the negligent supervision of minors was not asserted in the tort claim, it could not be asserted in her
22 Superior Court complaint. (See also Donahue v. State of California (1986) 178 Cal.App.3d 795, 802-
23 803)
24 When a plaintiff sues in her capacity as a statutory wrongful death heir, that is a very different
25 claim than when the same person sues for her own personal injuries or in a representative capacity as a
26 successor in interest to a decedent. (Dominguez v. City ofAlhambra, supra, 118 Cal.App.3d 237, 243.)
27 The claims are for different damages entirely, involving the violation of different primary rights and
28 different plaintiffs. (Ibid.) Therefore, if the same person intends to sue as both a wrongful death claimant
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - S
1 and also in her individual capacity for her own personal injuries or representative capacity on behalf of
2 an estate, the additional claims for damages need to be spelled out in the government tort claim along
3 with the tort claim for wrongful death. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256
4 at pp. 1278-1279 [spouse as representative of decedent's estate is a different plaintiff than spouse as
5 wrongful death heir; thus, untimely survival claim will not relate back to the timely wrongful death
6 claim even though plaintiffs name is the same, because she is suing in different capacities] and Nelson v.
7 State (1982) 139 Cal.App.3d 72 [complaint needs to reflect theories in tort claim; medical negligence is
8 a claim different in kind from one alleging failure to summon medical care].) For the same reasons, if
9 the tort claim alleges injury to one party but fails to allege loss of consortium on behalf of the spouse of
10 the injured party, there can be no loss of consortium claim asserted in the civil complaint. (See Shelton
11 v. Superior Court (1976) 56 Cal.App.3d 66, 82-83.) 1
12 As in Fall River District, where the claimants failed to present a tort claim for negligent hiring
13 and retention and that cause of action was adjudicated out of their complaint, here the same should
14 occur. Plaintiffs did not present a tort claim for negligence, negligent hiring of physicians (named or
15 unnamed), or for negligent infliction of emotional distress. The tort claim is silent on those claims. As
16 such, plaintiffs' causes of action for negligence, Elam negligence and NIED must be dismissed for
17 failure to comply with the GTCA, per the holding in Fall River District.
18 For all of these reasons, the undisputed facts establish that defendants' motion for summary
19 adjudication must be granted as to the second, third, fifth and sixth causes of action brought on behalf of
20 all plaintiffs other than the wrongful death claimants.
21 III. PLAINTIFFS CITE NO AUTHORITY AS TO DEFENDANTS' DUTY TO ALERT
PLAINTIFFS OF ANY FAILURE TO COMPLY WITH THE GOVERNMENT
22 TORT CLAIMS STATUTES.
23 Plaintiffs cite no authority, and none exists, in support of their contention that KCHA had a duty
24 to notify plaintiffs' counsel regarding their failure to add claims to their tort claim. This argument flies
25 in the face of common sense and the law. There is no duty, and plaintiffs can cite to no case law that
26
27
1
The Court will recall that, here, it denied plaintiff leave to amend to assert a loss of consortium claim on this
28 basis.
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA. NEIMAN & LOPEZ - 6
1 identifies one, to inform an adversary who is represented by counsel that the claimant should include
2 more causes of action or claimants in the tort claim.
3 IV. PLAINTIFFS CITE NO AUTHORITY TO SUPPORT GRANTING LEAVE TO
AMEND AFTER A MOTION FOR SUMMARY JUDGMENT IS FILED.
4
5 There is no authority to support plaintiff's request for leave to amend to attach a tort claim form
6 as an exhibit after a summary judgment motion is filed. The cases cited by plaintiffs are distinguishable.
7 In Williams v. Braslow (1986) 179 Cal. App. 3d 762, no claim was ever filed because the defendant
8 county denied plaintiffs application for leave to file a late claim. Additionally, Bostrom v. County ofSan
9 Bernardino (1995) 35 Cal. App. 4th 1654, involved summary judgment on the grounds of the general
10 rule of sovereign immunity.
11 Plaintiffs' argument that Defendants are using summary judgment to test the sufficiency of
12 Plaintiffs' pleadings is incorrect. (OPP, p. 10:5-7) Plaintiffs' reliance on Hejmadi v. AMFAC, Inc. (1988
13 202 Cal. App. 3d 525, is misplaced because the court in that case was ruling on a demurrer where
14 defendants requested judicial notice of previous summary adjudication rulings.
15 More importantly, however, it is improper for plaintiffs to attempt to materially change their case
16 after a motion for summary adjudication has been filed. This case was filed in 2021, over three years
17 ago. Up until the MSA was filed, plaintiffs' position throughout the case was that they presented a tort
18 claim on April 22, 2020 and that the tort claim presented on that date was Exh. A to the declaration of
19 Mr. Silverberg. In discovery responses, plaintiffs produced Exh. A (Gonzalez 00014-00015) as the only
20 tort claim presented by plaintiffs to KCHA. For plaintiffs to now claim that a different tort claim could
21 be presented to support their claims at this late stage, after defendants' motion for summary adjudication
22 was filed, is improper and would be prejudicial to defendants.
23 "It would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by
24 allowing them to present a 'moving target' unbounded by the pleadings." (Melican v. Regents of
25 University of California (2007) 151 Cal.App.4th 168, 176.) "And, under the sham pleading doctrine, the
26 trial court may disregard amendments that omit harmful allegations in the original complaint or add
27 allegations inconsistent with it." (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4 th 1263,
28 1281.)
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 7
1 Permitting an amendment to the complaint applies only "[w]here no prejudice is shown to the
2 adverse party." (Atkinson v. Elk Corp. (2003) 109 Cal.App.4 th 739, 761.) In Estate of Murphy (1978) 82
3 Cal.App.3d 304, 311 "... the proposed amendment opened up an entirely new field of inquiry without
4 any satisfactory explanation as to why this major change in point of attack had not been made long
5 before trial." Under those circumstances, denial ofleave to amend was appropriate, as it is here as well.
6 Any attempt to materially change plaintiffs' allegations at this late stage of the proceedings, after
7 defendants' MSA was filed, would be unduly prejudicial to defendants.
8
v. PLAINTIFFS' ATTEMPT TO DISPUTE CERTAIN OF DEFENDANTS' FACTS
9 IS WITHOUT FOUNDATION; AND PLAINTIFFS HAVE SUBMITTED
ADDITIONAL FACTS THAT ARE OBJECTIONABLE.
10
Plaintiffs attempt to dispute defendants' undisputed facts numbers 17, 20-23, 26, 29, 32, and 35
11
with irrelevant arguments concerning other facts. These statements are simply unsworn arguments by
12
plaintiffs' attorneys. The responses to UMF Nos. 17, 20-23, 26, 29, 32 and 35 do not provide evidence
13
to contradict the stated facts. As such, they remain undisputed.
14
Likewise, plaintiffs' additional facts in their separate statement, Nos. 4 through 9, relate to issues
15
not pertinent to the claims presentation requirements. As such, those facts are not material to
16
defendants' motion and should be disregarded.
17
Defendants have objected to plaintiffs' evidence filed in opposition to the motion and request
18
that the Court rule on those objections.
19
CONCLUSION
20
It has been demonstrated by the arguments presented in the moving papers, evidence in support
21
of the moving papers, and herein that plaintiffs cannot prove the essential element of compliance with
22
the Government Tort Claims Act as to the second, third, fifth and sixth causes of action. Accordingly,
23
defendants' motion for summary adjudication as to the causes of action should be granted.
24
Dated: April 19, 2024 CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP
25
26
By: -~~f'Jl.jiL
Hug . pa ,
· Attorneys for Defendants
27 Kern County Hospital Authority (erroneously sued as Kern
Medical Center), Alexandra Neiman, M.D. & Juan Lopez, M.D.
28
REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 8
Preview
I Hugh S. Spackman, State Bar No. 150204 CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP 2 P.O. Box 21007 Santa Barbara, CA 93121 3 Phone: (805) 965-0043 Fax: (805) 965-8894 4 Attorneys for Defendants Kern County Hospital Authority 5 (erroneously sued as Kern Medical Center), Alexandra Neiman, M.D. & Juan Lopez, M.D. 6 7 [No filing fee required pursuant to Govt Code§ 6103) 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 11 CYNTHIA GONZALEZ; ALEJANDRO CASE NO. BCV-21-100289 GONZALEZ; and THE ESTATE OF Complaint Filed: 02/09/2021 12 SERGIO ARTURO GONZALEZ, by and Assigned: Hon. Bernard C. Barrnann, Jr. through its Successors-in-Interest, CYNTHIA 13 GONZALEZ and ALEJANDRO GONZALEZ, REPLY TO PLAINTIFFS' OPPOSITION TO 14 MOTION FOR SUMMARY Plaintiffs, ADJUDICATION ON BEHALF OF 15 DEFENDANTS KERN COUNTY vs. HOSPITAL AUTHORITY, ALEXANDRA 16 NEIMAN, M.D., AND JUAN LOPEZ, M.D. KERN MEDICAL CENTER; ALEXANDRA 17 NEIMAN, M.D.; and DOES 1 through 100, inclusive, Date: April 25, 2024 18 Time: 8:30 a.m. Defendants. Dept.: H 19 20 [Filed concurrently with Defendants' Objections to Plaintiffs' Evidence] 21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 22 COMES NOW DEFENDANTS KERN COUNTY HOSPITAL AUTHORITY; ALEXANDRA 23 NEIMAN, M.D.; and JUAN LOPEZ, M.D and hereby reply to plaintiffs' opposition to defendants' 24 motion for summary adjudication as follows. 25 "Sovereign immunity is the rule in California." (Sonoma Ag Art v. Dept. Food & Agriculture 26 (2004) 125 Cal.App. 4 th 122, 125.) The Government Tort Claims Act (Gov. Code §900 et seq.) 27 ("GTCA") is the statutory embodiment of this immunity for public entities in the state of California such 28 REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - I 1 as these moving defendants. As explained by the Cal. Supreme Court, "the intent of the [GTCA] is not 2 to expand the right of plaintiffs in suits against governmental entities, but to confine potential 3 governmental liability to rigidly delineated circumstances: immunity is waived only if the various 4 requirements of the act are satisfied." (Williams v. Horvath (1976) 16 Cal.3d 834, 838.) The Act 5 "permits private tort actions against government entities and employees where permitted by statute, bu 6 otherwise retains the general concept of immunity for government entities." (DeJung v. Superior Court 7 (2008) 169 Cal.App.4th 533, 543 [bold added].) Since plaintiffs have failed to comply with the 8 requirements of the GTCA as to their second, third, fifth and sixth causes of action, defendants' Motion 9 for Summary Adjudication ("MSA") should be granted. 10 I. THE FOCUS OF THE COURT'S ATTENTION SHOULD BE DRAWN TO THE FOUR CORNERS OF THE TORT CLAIM DATED APRIL 22, 2020; ALL 11 OTHER ISSUES PRESENTED BY PLAINTIFF'S OPPOSITION ARE IMMATERIAL. 12 13 The basis for defendants' motion for summary adjudication as to the second, third, fifth and sixth 14 causes of action is that plaintiffs did not present a timely tort claim with respect to those causes of action 15 and the plaintiffs who are pursuing those causes of action. The motion does not seek to summarily 16 adjudicate the wrongful death cause of action brought by Cynthia and Alejandro Gonzalez as wrongful 17 death heirs. The simple reason is this: The April 22, 2020 tort claim presented on behalf of Cynthia and 18 Alejandro Gonzalez expressly stated a claim on their behalf as wrongful death claimants seeking 19 compensation for "wrongful death of Sergio Gonzalez and related damages" with an occurrence date of 20 February 14, 2020 (the date of death). (Def. Exh. A to MSA, page 1.) 21 The word "negligence" is nowhere mentioned in the tort claim. The tort claim does not mention 22 the Estate of Sergio Gonzalez as a claimant, does not mention survival damages or medical expenses, 23 and does not mention that it is brought on behalf of Cynthia Gonzalez for any claims other than for 24 "wrongful death of Sergio Gonzalez and related damages." The date of injury noted on the tort claim is 25 February 14, 2020-the date of Sergio Gonzalez's fetal death. (Exh A., p. 1.) There is no mention of 26 claimants being successors in interest. As such, it cannot reasonably be inferred from the tort claim, 27 even liberally construed, that any claim other than wrongful death intended to be brought by Mr. and 28 REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 2 1 Mrs. Gonzalez. This is the reason why defendants' motion for summary adjudication as to all other 2 causes of action in this case must be granted. 3 The tort claim is silent on any potential Elam claim, is silent on any damages suffered other than 4 for wrongful death, and mentions nothing about emotional distress. Consequently, each of plaintiffs' 5 causes of action against moving defendants - other than for wrongful death - are barred under 6 Government Code §945.4 for failure to present a timely government tort claim to Kem County Hospital 7 Authority ("KCHA") as to those claims. 8 This fatal defect is not capable of being cured. Plaintiffs did not serve an amended tort claim, 9 and they did not seek leave to present a late claim. (UMF No. 22) Nor did they file a petition with this 10 court seeking relief from the claims presentation requirements. (UMF No. 23) 11 Defendants are therefore entitled to judgment in their favor as a matter of law as to the second, 12 third, fifth and sixth causes of action in the TAC. All other issues set forth in plaintiffs opposition brief 13 are either not material to the motion for summary adjudication or are objectionable, and do not create a 14 triable issue of fact. 15 IL DEFENDANTS HAVE MET THEIR BURDEN AND THERE IS NO TRIABLE 16 ISSUE OF FACT. 17 Summary judgment is properly granted where the evidence in support of the moving party 18 conclusively negates a necessary element of the plaintiffs case or establishes a complete defense. 19 (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 661-662.) 20 Here, defendants have met their burden of proof to show that the tort claim which plaintiffs 21 presented on April 22, 2020 does not assert any claim other than for wrongful death. It is clear from the 22 four corners of the claim itself. There is no dispute that no other tort claim was presented to KCHA in 23 this case. As such, plaintiffs cannot establish the essential element of compliance with the GTCA as to 24 any causes of actions or claimants other than for wrongful death. The opposing papers do not raise any 25 genuine factual dispute and provide no evidence that plaintiffs complied with the express requirements 26 of the GTCA. As such, defendants are entitled to sovereign immunity with respect to the causes of 27 action for which no tort claim was presented. (See Williams v. Horvath, supra, 16 Cal.3d 834, 838) 28 \\\ REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 3 1 A. The Timeliness And Notice Requirements Are Not At Issue. 2 The opposing papers contain a lot of "smoke and mirrors" arguments regarding the notice 3 requirements for tort claims. Plaintiffs appear to suggest that defendants had a duty to advise plaintiffs 4 that they failed to add additional causes of action to the April 22, 2020 tort claim so that plaintiffs could 5 have timely fixed the problem. This is erroneous and contrary to the law. 6 The tort claim presented on April 22, 2020 was not insufficient under the GTCA for a wrongful 7 death claim to be asserted. As such, defendant KCHA owed no duty to plaintiffs under Gov. Code 8 section 910.8 to notify them that the tort claim, as presented, was insufficient. Indeed, for a wrongful 9 death claim, the tort claim would have been sufficient under Section 910. Moreover, plaintiffs' 10 argument that KCHA should have notified plaintiffs' counsel that they should have added more claims 11 to the tort claim or added more information to include additional claimants to the tort claim makes no 12 sense. The public entity has no duty to an adversary to encourage them to add more causes of action or 13 claimants to a tort claim. 14 B. There Are No Notice Requirements For A Cause Of Action On A Tort Claim. 15 For purposes of the motion for summary adjudication, defendants have stated in the motion that 16 they are not disputing the date of mailing of the tort claim: April 22, 2020. (UMF No. 17) The date of 17 mailing of the tort claim is not at issue here. As such, plaintiffs are mistaken as to the sole issue in 18 defendants' motion for summary adjudication being about notice requirements and the timely mailing of 19 their tort claim. (OPP, p. 4: 14-17) 20 Likewise, plaintiffs' arguments regarding substantial compliance and regarding giving "notice" 21 to the public entity and public employees of potential claims for negligence, hospital negligence, and 22 negligent infliction of emotional distress are erroneous. There is no substantial compliance with the 23 GTCA for a cause of action that is not fairly reflected in the tort claim itself. Plaintiffs' tort claim does 24 not even mention the word "negligence" anywhere in it. There is no mention of the words "emotional 25 distress" in it. There is no mention of alleged negligence in the "selection, retention or supervision of 26 medical staff' (whether doctors were named or not) to support an Elam cause of action. There is no 27 mention of a claim for survival on behalf of Sergio Gonzalez's estate. There can be no notice or 28 substantial compliance with the GTCA when these words are nowhere to be mentioned in the tort claim. REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 4 1 Moreover, in City ofSan Jose v. Superior Court (1974) 12 Cal.3d 447, the court said: "It is not 2 the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide 3 the public entity sufficient information to enable it to adequately investigate claims and to settle them, if 4 appropriate, without the expense oflitigation. [Citations.] It is well-settled that claims statutes must be 5 satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. 6 Such knowledge - standing alone - constitutes neither substantial compliance nor basis for estoppel. 7 [Citations.]" (Id at p. 455.) Here, it was not clear until plaintiffs filed their Superior Court complaint 8 that they intended to assert anything other than a claim for wrongful death. 9 Damages for wrongful death are very specific and provided by statute. (Code Civ. Proc. section 10 377.60) So a tort claim that states it is for "wrongful death .... and related damages" is one for damages 11 under Code Civ. Proc. section 377.60. A survival cause of action cannot be reasonably considered to be 12 one for "related damages" under the wrongful death statute. This is because a survival claim arises out 13 of a dffferent primary right and involves a different plaintiffthan one for wrongful death. (See 14 Dominguez v. City ofAlhambra (1981) 118 Cal.App.3d 237.) 15 This case is analogous to Fall River Joint Unified School Dist. v. Superior Court ( 1988) 206 16 Cal.App.3d 431 [hereinafter Fall River District], where the court held that a student's suit against a 17 school district, as a result of being struck by a steel door, could not contain a cause of action for the 18 alleged negligent supervision of students engaged in dangerous horseplay, as the negligent supervision 19 theory was not contained in plaintiffs tort claim. The tort claim only alleged negligent maintenance of 20 the steel door, so the plaintiff was limited in her negligence theory that could be pursued at trial. Since 21 the negligent supervision of minors was not asserted in the tort claim, it could not be asserted in her 22 Superior Court complaint. (See also Donahue v. State of California (1986) 178 Cal.App.3d 795, 802- 23 803) 24 When a plaintiff sues in her capacity as a statutory wrongful death heir, that is a very different 25 claim than when the same person sues for her own personal injuries or in a representative capacity as a 26 successor in interest to a decedent. (Dominguez v. City ofAlhambra, supra, 118 Cal.App.3d 237, 243.) 27 The claims are for different damages entirely, involving the violation of different primary rights and 28 different plaintiffs. (Ibid.) Therefore, if the same person intends to sue as both a wrongful death claimant REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - S 1 and also in her individual capacity for her own personal injuries or representative capacity on behalf of 2 an estate, the additional claims for damages need to be spelled out in the government tort claim along 3 with the tort claim for wrongful death. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 4 at pp. 1278-1279 [spouse as representative of decedent's estate is a different plaintiff than spouse as 5 wrongful death heir; thus, untimely survival claim will not relate back to the timely wrongful death 6 claim even though plaintiffs name is the same, because she is suing in different capacities] and Nelson v. 7 State (1982) 139 Cal.App.3d 72 [complaint needs to reflect theories in tort claim; medical negligence is 8 a claim different in kind from one alleging failure to summon medical care].) For the same reasons, if 9 the tort claim alleges injury to one party but fails to allege loss of consortium on behalf of the spouse of 10 the injured party, there can be no loss of consortium claim asserted in the civil complaint. (See Shelton 11 v. Superior Court (1976) 56 Cal.App.3d 66, 82-83.) 1 12 As in Fall River District, where the claimants failed to present a tort claim for negligent hiring 13 and retention and that cause of action was adjudicated out of their complaint, here the same should 14 occur. Plaintiffs did not present a tort claim for negligence, negligent hiring of physicians (named or 15 unnamed), or for negligent infliction of emotional distress. The tort claim is silent on those claims. As 16 such, plaintiffs' causes of action for negligence, Elam negligence and NIED must be dismissed for 17 failure to comply with the GTCA, per the holding in Fall River District. 18 For all of these reasons, the undisputed facts establish that defendants' motion for summary 19 adjudication must be granted as to the second, third, fifth and sixth causes of action brought on behalf of 20 all plaintiffs other than the wrongful death claimants. 21 III. PLAINTIFFS CITE NO AUTHORITY AS TO DEFENDANTS' DUTY TO ALERT PLAINTIFFS OF ANY FAILURE TO COMPLY WITH THE GOVERNMENT 22 TORT CLAIMS STATUTES. 23 Plaintiffs cite no authority, and none exists, in support of their contention that KCHA had a duty 24 to notify plaintiffs' counsel regarding their failure to add claims to their tort claim. This argument flies 25 in the face of common sense and the law. There is no duty, and plaintiffs can cite to no case law that 26 27 1 The Court will recall that, here, it denied plaintiff leave to amend to assert a loss of consortium claim on this 28 basis. REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA. NEIMAN & LOPEZ - 6 1 identifies one, to inform an adversary who is represented by counsel that the claimant should include 2 more causes of action or claimants in the tort claim. 3 IV. PLAINTIFFS CITE NO AUTHORITY TO SUPPORT GRANTING LEAVE TO AMEND AFTER A MOTION FOR SUMMARY JUDGMENT IS FILED. 4 5 There is no authority to support plaintiff's request for leave to amend to attach a tort claim form 6 as an exhibit after a summary judgment motion is filed. The cases cited by plaintiffs are distinguishable. 7 In Williams v. Braslow (1986) 179 Cal. App. 3d 762, no claim was ever filed because the defendant 8 county denied plaintiffs application for leave to file a late claim. Additionally, Bostrom v. County ofSan 9 Bernardino (1995) 35 Cal. App. 4th 1654, involved summary judgment on the grounds of the general 10 rule of sovereign immunity. 11 Plaintiffs' argument that Defendants are using summary judgment to test the sufficiency of 12 Plaintiffs' pleadings is incorrect. (OPP, p. 10:5-7) Plaintiffs' reliance on Hejmadi v. AMFAC, Inc. (1988 13 202 Cal. App. 3d 525, is misplaced because the court in that case was ruling on a demurrer where 14 defendants requested judicial notice of previous summary adjudication rulings. 15 More importantly, however, it is improper for plaintiffs to attempt to materially change their case 16 after a motion for summary adjudication has been filed. This case was filed in 2021, over three years 17 ago. Up until the MSA was filed, plaintiffs' position throughout the case was that they presented a tort 18 claim on April 22, 2020 and that the tort claim presented on that date was Exh. A to the declaration of 19 Mr. Silverberg. In discovery responses, plaintiffs produced Exh. A (Gonzalez 00014-00015) as the only 20 tort claim presented by plaintiffs to KCHA. For plaintiffs to now claim that a different tort claim could 21 be presented to support their claims at this late stage, after defendants' motion for summary adjudication 22 was filed, is improper and would be prejudicial to defendants. 23 "It would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by 24 allowing them to present a 'moving target' unbounded by the pleadings." (Melican v. Regents of 25 University of California (2007) 151 Cal.App.4th 168, 176.) "And, under the sham pleading doctrine, the 26 trial court may disregard amendments that omit harmful allegations in the original complaint or add 27 allegations inconsistent with it." (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4 th 1263, 28 1281.) REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 7 1 Permitting an amendment to the complaint applies only "[w]here no prejudice is shown to the 2 adverse party." (Atkinson v. Elk Corp. (2003) 109 Cal.App.4 th 739, 761.) In Estate of Murphy (1978) 82 3 Cal.App.3d 304, 311 "... the proposed amendment opened up an entirely new field of inquiry without 4 any satisfactory explanation as to why this major change in point of attack had not been made long 5 before trial." Under those circumstances, denial ofleave to amend was appropriate, as it is here as well. 6 Any attempt to materially change plaintiffs' allegations at this late stage of the proceedings, after 7 defendants' MSA was filed, would be unduly prejudicial to defendants. 8 v. PLAINTIFFS' ATTEMPT TO DISPUTE CERTAIN OF DEFENDANTS' FACTS 9 IS WITHOUT FOUNDATION; AND PLAINTIFFS HAVE SUBMITTED ADDITIONAL FACTS THAT ARE OBJECTIONABLE. 10 Plaintiffs attempt to dispute defendants' undisputed facts numbers 17, 20-23, 26, 29, 32, and 35 11 with irrelevant arguments concerning other facts. These statements are simply unsworn arguments by 12 plaintiffs' attorneys. The responses to UMF Nos. 17, 20-23, 26, 29, 32 and 35 do not provide evidence 13 to contradict the stated facts. As such, they remain undisputed. 14 Likewise, plaintiffs' additional facts in their separate statement, Nos. 4 through 9, relate to issues 15 not pertinent to the claims presentation requirements. As such, those facts are not material to 16 defendants' motion and should be disregarded. 17 Defendants have objected to plaintiffs' evidence filed in opposition to the motion and request 18 that the Court rule on those objections. 19 CONCLUSION 20 It has been demonstrated by the arguments presented in the moving papers, evidence in support 21 of the moving papers, and herein that plaintiffs cannot prove the essential element of compliance with 22 the Government Tort Claims Act as to the second, third, fifth and sixth causes of action. Accordingly, 23 defendants' motion for summary adjudication as to the causes of action should be granted. 24 Dated: April 19, 2024 CLINKENBEARD, RAMSEY, SPACKMAN & CLARK, LLP 25 26 By: -~~f'Jl.jiL Hug . pa , · Attorneys for Defendants 27 Kern County Hospital Authority (erroneously sued as Kern Medical Center), Alexandra Neiman, M.D. & Juan Lopez, M.D. 28 REPLY TO OPPOSITION TO MSA ON BEHALF OF DEFS. KCHA, NEIMAN & LOPEZ - 8