Preview
1 JOHN L. SUPPLE (SBN 94582)
jsupple@jsupplelaw.com
2 ROBERT R. DEERING (SBN 258043)
rdeering@jsupplelaw.com 8/21/2020
3 LEAH S. GRAY (SBN 328807)
lgray@jsupplelaw.com
4 J SUPPLE LAW
A Professional Corporation
5 990 Fifth Avenue
San Rafael, CA 94901
6
Telephone: (415) 366-5533
7 Facsimile: (415) 480-6301
8 Attorneys for Defendants
SEAN STODDARD, DPM; SEAN STODDARD, LLC; and FOOT AND ANKLE CLINIC OF
9 NORTHERN CALIFORNIA, INC. (also erroneously sued as “NORCAL FOOT AND ANKLE”)
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF BUTTE
12
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
CAREN SCALLA, Case No. 18CV02004
13
Plaintiff, SEAN STODDARD, DPM; SEAN
14
STODDARD, LLC; and FOOT AND
15 vs. ANKLE CLINIC OF NORTHERN
CALIFORNIA, INC. (also erroneously
16 SEAN STODDARD, SEAN STODDARD LLC, sued as “NORCAL FOOT AND
NORCAL FOOT AND ANKLE, FOOT AND ANKLE”)’S REPLY TO PLAINTIFF’S
17 ANKLE CLINIC OF NORTHERN OPPOSITION TO DEFENDANTS’
18 CALIFORNIA, OROVILLE HOSPITAL, MOTION FOR SUMMARY
PATIENTS’ HOSPITAL, and DOES 1 TO 100, ADJUDICATION
19
Defendants. Accompanying Documents:
20 1) Objections to Plaintiff’s Evidence
Submitted in Opposition to Motion for
21 Summary Adjudication;
2) [Proposed] Order; and
22 3) Proof of Service
23
Date: August 26, 2020
24 Time: 9:00 a.m.
Dept.: 1
25
Assigned for All Purposes to
26 Hon. Tamara Mosbarger, Department 1
27
Complaint Filed: June 21, 2018
28 Trial Set: June 21, 2021
DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 As a threshold matter, Plaintiff filed and served her Opposition papers a day late, and thus
3 the Court may disregard them in their entirety and grant Defendants’ motion as unopposed. (Bozzi
4 v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule
5 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline
6 without a prior court order finding good cause of late submission.”].) Even if the Court were to
7 consider the late-filed papers, it would inevitably lead to the same result – summary adjudication
8 of all causes of action addressed in Defendants’ underlying motion.
9 Plaintiff Caren Scalla fails to create a triable issue of fact precluding summary adjudication
10 in favor of Defendants, as is apparent from Plaintiff’s response to Defendants’ separate statement
11 of undisputed material facts. Plaintiff does not, and cannot, provide competent admissible evidence
12 that Dr. Stoddard ever acted in such a way that would make Defendants liable for the intentional
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 torts which Plaintiff alleged against them. Because Plaintiff does not have facts to support her
14 allegations, she resorts to mis-stating evidence, ignoring case law, and misconstruing statutory
15 authority. Put simply, in opposing the instant motion, it is incumbent upon Plaintiff to “produce
16 substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v.
17 Paetkau (1998) 68 Cal.App.4th 151, 162 [emphasis added].) Plaintiff has objectively failed to meet
18 this burden.
19 The crux of Plaintiff’s Opposition is that that Dr. Stoddard lied to Ms. Scalla about her
20 having end-stage arthritis in 2015, and thus his recommendation of the total ankle replacement
21 (“TAR”) was improper. However, as fully set forth in Defendant’s accompanying evidentiary
22 objections, Plaintiff has presented no admissible evidence that Ms. Scalla did not in fact have end-
23 stage arthritis at the time Dr. Stoddard recommended the first TAR in 2015.
24 In support of her claims, Plaintiff introduced a woefully deficient declaration by William
25 Hoddick, M.D., wherein Dr. Hoddick concludes that the TAR was not indicated. However, the
26 Hoddick Declaration has no evidentiary value. Not only is Dr. Hoddick (a radiologist) not qualified
27 to opine upon whether Dr. Stoddard (a Doctor of Podiatric Medicine) could have reasonably
28 determined that a TAR was indicated, his declaration makes purely conclusory statements and fails
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 to disclose the basis of said opinions. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968-969;
2 Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) Moreover, the Hoddick Declaration fails entirely
3 to comply with the prerequisites set forth in Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 740-
4 743, and is therefore inadmissible to demonstrate the existence of a triable issue of material fact.
5 Indeed, Dr. Hoddick vaguely indicates that he reviewed “pre-operative x-rays” of the patient’s
6 ankle, 1 but he does not provide any other information to clarify what specific imaging he reviewed
7 and relied upon in forming his conclusory opinions. Is Dr. Hoddick reviewing images from 2005?
8 2010? 2015? The Court and Defendants are left guessing. The Hoddick Declaration should be
9 disregarded in its entirety.
10 Plaintiff also introduces excerpts of Christopher D. Kreulen, M.D.’s deposition transcript
11 in support of her Opposition. Plaintiff relies almost exclusively on Dr. Kreulen’s deposition
12 testimony to dispute Defendants’ statement of undisputed facts and to introduce new material facts.
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 However, Plaintiff frequently mischaracterizes Dr. Kreulen’s testimony, as Dr. Kreulen’s actual
14 testimony does not create a triable issue of material fact on any of the claims at issue in this motion.
15 For example, Plaintiff argues that Dr. Kreulen testified that no reasonable surgeon with Dr.
16 Stoddard’s skill and experience could have possibly found end-stage arthritis in Ms. Scalla’s foot
17 and ankle. However, Dr. Kreulen actually testified that based on his review of certain unidentified
18 x-rays, he did not find evidence of end-stage arthritis. 2 He did not conclude that Ms. Scalla lacked
19 any arthritis when Dr. Stoddard recommended at TAR in 2015, nor did give an opinion on whether
20 another similarly qualified surgeon could have found end-stage arthritis. Indeed, much of Dr.
21 Kreulen’s cited testimony involves him discussing the lack of evidence of end-stage arthritis on
22 non-weightbearing x-rays. Dr. Stoddard only took weightbearing x-rays, which Dr. Kreulen noted
23 was proper, as arthritis and deformity are difficult to see in non-weightbearing images. 3 Moreover,
24 Dr. Kreulen did not dispute Dr. Stoddard’s interpretation of Ms. Scalla’s weightbearing x-rays:
25 Radiologic Examination: Weight-bearing X-rays of the left foot & ankle, 2 views
each, demonstrates severe arthritic changes to the tibiotalar, subtalar &
26
27 1
Exhibit C to Declaration of Daniel Weltin (Hoddick Declaration), page 2, lines 11-12.
2
28 Exhibit A to Declaration of Daniel Weltin (Kreulen Depo), page 60, lines 21-24.
3
Id. at page 51, lines 8-15; page 60, lines 5-20.
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
talonavicular joints, with peritalar subluxation/dislocation. There is also collapse of
1 the medial column of the foot, with an inferior calcaneal spur noted. 4
2 Dr. Kreulen simply disagreed with Dr. Stoddard’s conclusion that what was shown on the
3 weightbearing x-ray rose to the level of end-stage arthritis.
4 At most, Dr. Kreulen’s testimony establishes that two qualified medical professionals can
5 reasonably differ in what they consider end-stage arthritic presentation on an x-ray. As the Court
6 is aware, difference of opinion between medical professionals is inadequate to support a cause of
7 action for medical negligence, let alone causes of action for intentional tort. (Clemens v Regents
8 of University of California (1970) 8 Cal.App.3d 1, 13 [“A difference of medical opinion
9 concerning the desirability of one particular medical procedure over another does not, however,
10 establish that the determination to use one of the procedures was negligent.”].) “Medicine is not a
11 field of absolutes. There is not ordinarily only one correct route to be followed at any given time.
12 There is always the need for professional judgment as to what course of conduct would be most
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J SUPPLE LAW, PC
990 Fifth Avenue
13 appropriate with regard to the patient’s condition.” (Barton v Owen (1977) 71 Cal.App.3d 484,
14 501-502.)
15 Furthermore, Plaintiff’s argument regarding end-stage ankle arthritis relies on a
16 fundamental assumption for which she has no expert support: that a TAR must only be done if the
17 patient’s x-rays conclusively reveal end-stage ankle arthritis. While it is true that a TAR is a
18 treatment for end-stage ankle arthritis, Plaintiff presents no evidence that a TAR cannot be used to
19 treat similar debilitating ankle conditions which might not rise to the level of end-stage ankle
20 arthritis. As Dr. Chang explained in his declaration, when considering Ms. Scalla’s clinical
21 presentation, her description of her pain and symptoms, her unsuccessful prior treatment attempts,
22 as well as the x-rays, the TAR was indicated. 5 Plaintiff has not contradicted Dr. Chang’s expert
23 declaration submitted in support of Defendants’ motion, nor Dr. Stoddard’s original determination
24 in the medical records, wherein they conclude that based on Ms. Scalla’s entire clinical picture
25 (not just her x-rays), the TAR was indicated.
26 ///
27
4
28 Exhibit G to Declaration of Robert Deering (Foot & Ankle Clinic Records), Scalla-SSDPM-00019.
5
Declaration of Thomas Chang, DPM, para. 23-26.
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 Plaintiff also states that Dr. Kreulen’s testimony supports her contention that diabetic
2 neuropathy is a contraindication for a TAR, such that no reasonable surgeon would perform a TAR
3 on a diabetic patient like Ms. Scalla. However, Dr. Kreulen did not testify about whether diabetic
4 neuropathy is a contraindication for a TAR. Plaintiff has presented no evidence in support of her
5 claims that Ms. Scalla’s diabetic condition meant that Dr. Stoddard should not have performed the
6 TAR.
7 Finally, Plaintiff spends multiple pages in her Separate Statement and Opposition
8 discussing how Dr. Stoddard improperly performed the surgeries. Plaintiff is critical of the way he
9 used cement in Ms. Scalla’s ankle and is convinced that what Dr. Kreulen found when he
10 amputated Ms. Scalla’s left lower extremity reveals that Dr. Stoddard did not perform the surgeries
11 within the standard of care. Plaintiff’s focus on Dr. Stoddard’s surgical technique underscores the
12 true issue of this case: whether Dr. Stoddard was medically negligent in his care and treatment of
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J SUPPLE LAW, PC
990 Fifth Avenue
13 Ms. Scalla. Yet, Defendants did not move for summary adjudication on the medical negligence
14 claim. No matter how much evidence Plaintiff introduces to show that Dr. Stoddard failed to
15 uphold the standard of care, such evidence does not create a triable issue of fact for any of her
16 intentional tort claims.
17 Because Plaintiff has failed to provide relevant, admissible evidence in support of her
18 claims for fraud, concealment, battery, assault, intentional infliction of emotional distress, and
19 dependent adult abuse, Defendants request the Court grant their Motion for Summary Adjudication
20 in its entirety.
21 II. ARGUMENT
22 The issues which Plaintiff claims are triable issues of fact are not actually supported by any
23 admissible evidence before this Court. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98
24 Cal.App.4th 1098, 1105 [“The evidence must be of sufficient quality to allow the trier of fact to
25 find the underlying fact in favor of the party opposing the motion for summary judgment.”] [citing
26 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850].) As fully explained in Defendants’
27 moving papers, Plaintiff cannot oppose Defendants’ Motion for Summary Adjudication with
28 “assertion[s] based solely on conjecture and speculation.” (Sanchez v. Swinerton & Walber Co.
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 (1996) 47 Cal.App.4th 1461, 1465 [internal quotation marks omitted].) “The plaintiff cannot meet
2 his burden of demonstrating a triable issue where his evidence merely provides ‘a dwindling
3 stream of probabilities that narrow into conjecture.’” (Nardizzi v. Harbor Chrysler Plymouth Sales,
4 Inc. (2006) 136 Cal.App.4th 1409, 1415 [quoting Lineaweaver v. Plant Insulation Co. (1995) 31
5 Cal.App.4th 1409, 1421].)
6 A. Plaintiff Fails to Raise a Triable Issue of Fact for the Fraud Cause of Action
7 Plaintiff fails to raise a triable issue of fact on two key elements of fraud: knowledge of
8 falsity and intent to defraud. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951,
9 974.)
10 Plaintiff argues Defendant fraudulently obtained her consent for the first surgery by lying
11 to her about the fact that she had end-stage ankle arthritis. However, as discussed above, Plaintiff
12 has only presented evidence that one other doctor disagreed with Dr. Stoddard’s conclusion that
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 she had end-stage ankle arthritis based on his review of unidentified x-rays. Plaintiff does not
14 present conclusive evidence that no reasonable doctor in Dr. Stoddard’s position could have
15 evaluated her and found end-stage ankle arthritis, such that Dr. Stoddard knew his diagnosis of
16 end-stage ankle arthritis was false.
17 Plaintiff also argues Defendant lied to her about having persistent adult acquired flat foot
18 deformity in order to convince her to undergo the second surgery to repair her mid-foot arch. Yet,
19 Plaintiff provides no evidence that she lacked persistent adult acquired flat foot deformity.
20 Similarly, Plaintiff argues Dr. Stoddard lied about the need to remove the plate in her foot, but
21 does not contradict his assessment that the plate did need to be removed because it was causing
22 irritation and infection. (UMF 51.)
23 Furthermore, Plaintiff presents no evidence that Dr. Stoddard intended to harm her. Rather,
24 she concludes that because Dr. Kreulen did not find end-stage ankle arthritis in her x-rays, Dr.
25 Stoddard must have intended to deceive her. “The court must consider presumptions and draw
26 inferences from the facts adduced where the inference is the only reasonable one which may be
27 drawn.” (Sanchez v. Swinerton & Walber Co., supra, 47 Cal.App.4th at 1465 [emphasis added].)
28 Plaintiff’s conclusion is not the only reasonable conclusion. Given the evidence before the court,
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 Plaintiff’s conclusion is not even reasonable. Indeed, Defendants’ moving papers were supported
2 by a duly qualified expert, Dr. Chang, who opined that Dr. Stoddard’s clinical judgment,
3 diagnoses, and surgical technique were reasonable. Plaintiff’s failure to even attempt to oppose
4 this declaration is dispositive on the issue of intent.
5 When opposing a Motion for Summary Adjudication, the opposing party cannot controvert
6 the moving party’s evidence with declarations “based on speculation, imagination, guess work, or
7 mere possibilities.” (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481.) Speculation,
8 imagination, guess work, or mere possibilities appropriately summarizes the entirety of Plaintiff’s
9 Opposition. It would be unjust, inequitable, and contrary to established precedent to require Dr.
10 Stoddard, a member of this community, to continue to defend against allegations of fraud under
11 these circumstances.
12 Having failed to produce any evidence that Dr. Stoddard made intentional
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 misrepresentations to Ms. Scalla, the Court should grant Defendants’ Motion for Summary
14 Adjudication as to Plaintiff’s cause of action for fraud.
15 B. Plaintiff Does Not Raise a Triable Issue of Fact for Concealment
16 The tort of concealment involves concealing or suppressing a material fact. (Boschma v.
17 Home Loan Center, Inc. (2011) 198 Cal.Ap.4th 230, 248.) Plaintiff’s entire argument for her
18 concealment cause of action rests on Dr. Stoddard concealing material “facts” which she cannot
19 actually prove are facts.
20 Plaintiff contends that Dr. Stoddard concealed the “fact” that the surgeries were not
21 indicated. Yet, she did not dispute Dr. Chang’s declaration wherein he concluded that they were
22 indicated. Moreover, her primary allegation in her concealment claim is that Dr. Stoddard
23 concealed the “fact” that her diabetes was a contraindication for a TAR. However, Plaintiff has
24 presented no evidence that diabetes is actually a contraindication for any of the surgeries which
25 Dr. Stoddard performed.
26 Again, Plaintiff’s Opposition forces the Court to engage in speculation and guesswork.
27 Plaintiff has failed to meet her burden and has failed prove the existence of any material facts
28
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 which Dr. Stoddard could have concealed; therefore, summary adjudication is appropriate for this
2 cause of action.
3 C. There is No Triable Issue of Fact for Plaintiff’s Battery Claim
4 Consent is a complete bar to the tort of battery. (Civ. Code § 3515.) In her Opposition,
5 Plaintiff does not dispute the existence or validity of the consent forms which she signed prior to
6 each surgery. She does not argue that she did not understand what she was signing, nor that the
7 documents were something other than valid consent forms. Rather, her sole argument is that she
8 was fraudulently induced into signing said consent forms by Dr. Stoddard’s intentional
9 misrepresentations of her clinical condition and his concealment of material facts. As Plaintiff
10 cannot prove that Dr. Stoddard made any intentional misrepresentations nor concealed any
11 material facts, there is no triable issue of fact on the issue of consent. Accordingly, summary
12 judgment is appropriate for her claim of battery.
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 Plaintiff attempts to argue that Dr. Stoddard stillcommitted a medical battery, because
14 Plaintiff’s consent was conditional on her having end-stage ankle arthritis. However, Plaintiff has
15 submitted no evidence in support of this alleged condition on her consent. Plaintiff gave her
16 consent to Dr. Stoddard to perform the surgeries based on his assessment of her overall clinical
17 picture. She never expressly conditioned her consent for any of the surgeries on her first being
18 conclusively diagnosed with end-stage ankle arthritis. Moreover, in order for Defendants to be
19 liable for this type of medical battery the provider must “intentionally violate the condition on the
20 consent while treating plaintiff.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1485-1486.)
21 Plaintiff has presented no evidence that Dr. Stoddard was aware that Ms. Scalla did not actually
22 have end-stage arthritis.
23 D. There is No Triable Issue of Fact for Plaintiff’s Claim of Assault
24 Like with battery, consent is a complete bar to the tort of assault. (Civ. Code § 3515.) As
25 described above, Plaintiff consented to each of the surgeries Dr. Stoddard performed.
26 Furthermore, Plaintiff’s persistence in arguing that there is a triable issue of fact on the
27 cause of action for assault demonstrates that Plaintiff does not understand the tort of assault, and
28 calls into question the credibility of her arguments in entirety of her Opposition. “The tort of assault
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 is complete when the anticipation of harm occurs.” (Kiseskey v. Carpenters’ Trust for So.
2 California (1983) 144 Cal.App.3d 222, 232 [emphasis added].) Plaintiff did not anticipate any
3 harm prior to the surgeries, beyond the pain inherent to the surgery to which she had consented.
4 Even if it were true that Plaintiff found out at a later date that Dr. Stoddard misrepresented that the
5 surgeries were indicated, that later-discovered fact cannot support a cause of action for assault,
6 where the fear must happen prior to the harm. (Ibid.) Accordingly, Plaintiff has failed to raise a
7 triable issue of fact for her claim of assault.
8 E. There is No Issue of Fact for Intentional Infliction of Emotional Distress
9 In order for Plaintiff to succeed on this cause of action, she must prove the existence of
10 “extreme and outrageous conduct by the defendant with the intention of causing, or reckless
11 disregard of the probability of causing, emotional distress.” (Hughes v. Pair (2009) 46 Cal.4th
12 1035, 1050 [internal quotation marks omitted].) “A defendant's conduct is ‘outrageous’ when it is
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J SUPPLE LAW, PC
990 Fifth Avenue
13 so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at 1050-
14 1051 [internal quotation marks omitted].)
15 While consent is not always a defense to intentional infliction of emotional distress like it
16 is for assault and battery, the fact that Plaintiff gave her consent in this case undercuts her claim
17 for intentional infliction of emotional distress. Common sense dictates that a surgeon performing
18 a surgery to which the patient has consented does not constitute extreme and outrageous conduct
19 which would “exceed all bounds of that usually tolerated in a civilized community.” Moreover,
20 medical negligence, such as not performing surgeries within the standard of care, cannot support
21 a claim for intentional infliction of emotional distress. Even if Dr. Stoddard did not uphold the
22 standard of care in performing the surgeries does not mean his conduct was “extreme and
23 outrageous.” Having failed to raise a triable issue of fact that Dr. Stoddard acted outrageously in
24 performing surgeries which he reasonably believed were indicated, the Court should grant
25 Defendants’ motion as to the intentional infliction of emotional distress claim.
26 F. Plaintiff Fails to Establish a Triable Issue of Fact for Dependent Adult Abuse
27 Because Plaintiff’s complaint was vague on the issue of dependent adult abuse,
28 Defendants’ motion addressed two code sections under which Plaintiff could, in theory, have
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 brought her claim for physical dependent adult abuse. The first is physical abuse as it is defined in
2 Welfare & Institutions Code Section 15610.63. As is relevant here, this type of physical abuse is
3 defined as battery. As explained above, Plaintiff has failed to establish a triable issue of fact for
4 battery, thus her dependent adult abuse claim also fails, if it was predicated on Section 15610.63.
5 Alternatively, Plaintiff could have brought her dependent adult abuse claim under Welfare
6 & Institutions Code Section 15610.07(2), which would require that Plaintiff prove Dr. Stoddard
7 was her care custodian. Plaintiff’s argument that there is a triable issue of fact regarding whether
8 Dr. Stoddard could be a care custodian ignores the clear case law on the issue. A custodial
9 relationship is a “relationship where a certain party has assumed a significant measure of
10 responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully
11 competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer
12 Medical Group, Inc (2016) 63 Cal.4th 148, 158.) For example, a care custodian would be
San Rafael, CA 94901
J SUPPLE LAW, PC
990 Fifth Avenue
13 responsible for helping the dependent adult perform basic daily task such as toileting, eating, and
14 drinking. (Ibid. [citing Welf. & Inst. Code, § 15610.57].) As noted in Plaintiff’s Separate
15 Statement, “Plaintiff was a dependent adult being cared for by her son paid by the Department of
16 Health Care Services.” (AMF No. 50 [emphasis added].) Ms. Scalla’s son was her care custodian,
17 not Dr. Stoddard. As a result, Plaintiff’s cause of action for dependent adult abuse fails and
18 Defendants’ Motion for Summary Adjudication should be granted.
19 G. Plaintiff Did Not Establish a Triable Issue of Fact as to Either Stoddard Entity
20 Plaintiff does not dispute that Dr. Stoddard was the sole owner and operator of the Stoddard
21 Entities. (UMF 91.) Plaintiff also did not introduce any material facts pertaining to either of the
22 Stoddard Entities which would make them independently liable even if Dr. Stoddard was not liable
23 for the above-discussed causes of action. Accordingly, as Dr. Stoddard is entitled to summary
24 adjudication, so are the Stoddard Entities.
25 ///
26 ///
27 ///
28 ///
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
1 III. CONCLUSION
2 As Plaintiff has failed to establish a triable issue of fact for any of her claims for fraud,
3 concealment, battery, assault, intentional infliction of emotional distress, and dependent adult
4 abuse, Defendants respectfully request the Court grant their Motion for Summary Adjudication in
5 its entirety.
6
7 Dated: August 21, 2020 J SUPPLE LAW
A Professional Corporation
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San Rafael, CA 94901
J SUPPLE LAW, PC
By:
990 Fifth Avenue
JOHN L. SUPPLE
13 ROBERT R. DEERING
14 LEAH S. GRAY
15 Attorneys for Defendants
SEAN STODDARD, DPM; SEAN
16 STODDARD, LLC; and FOOT AND ANKLE
CLINIC OF NORTHERN CALIFORNIA, INC.
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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
Preview
1 JOHN L. SUPPLE (SBN 94582) jsupple@jsupplelaw.com 2 ROBERT R. DEERING (SBN 258043) rdeering@jsupplelaw.com 8/21/2020 3 LEAH S. GRAY (SBN 328807) lgray@jsupplelaw.com 4 J SUPPLE LAW A Professional Corporation 5 990 Fifth Avenue San Rafael, CA 94901 6 Telephone: (415) 366-5533 7 Facsimile: (415) 480-6301 8 Attorneys for Defendants SEAN STODDARD, DPM; SEAN STODDARD, LLC; and FOOT AND ANKLE CLINIC OF 9 NORTHERN CALIFORNIA, INC. (also erroneously sued as “NORCAL FOOT AND ANKLE”) 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF BUTTE 12 San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue CAREN SCALLA, Case No. 18CV02004 13 Plaintiff, SEAN STODDARD, DPM; SEAN 14 STODDARD, LLC; and FOOT AND 15 vs. ANKLE CLINIC OF NORTHERN CALIFORNIA, INC. (also erroneously 16 SEAN STODDARD, SEAN STODDARD LLC, sued as “NORCAL FOOT AND NORCAL FOOT AND ANKLE, FOOT AND ANKLE”)’S REPLY TO PLAINTIFF’S 17 ANKLE CLINIC OF NORTHERN OPPOSITION TO DEFENDANTS’ 18 CALIFORNIA, OROVILLE HOSPITAL, MOTION FOR SUMMARY PATIENTS’ HOSPITAL, and DOES 1 TO 100, ADJUDICATION 19 Defendants. Accompanying Documents: 20 1) Objections to Plaintiff’s Evidence Submitted in Opposition to Motion for 21 Summary Adjudication; 2) [Proposed] Order; and 22 3) Proof of Service 23 Date: August 26, 2020 24 Time: 9:00 a.m. Dept.: 1 25 Assigned for All Purposes to 26 Hon. Tamara Mosbarger, Department 1 27 Complaint Filed: June 21, 2018 28 Trial Set: June 21, 2021 DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 As a threshold matter, Plaintiff filed and served her Opposition papers a day late, and thus 3 the Court may disregard them in their entirety and grant Defendants’ motion as unopposed. (Bozzi 4 v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 5 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline 6 without a prior court order finding good cause of late submission.”].) Even if the Court were to 7 consider the late-filed papers, it would inevitably lead to the same result – summary adjudication 8 of all causes of action addressed in Defendants’ underlying motion. 9 Plaintiff Caren Scalla fails to create a triable issue of fact precluding summary adjudication 10 in favor of Defendants, as is apparent from Plaintiff’s response to Defendants’ separate statement 11 of undisputed material facts. Plaintiff does not, and cannot, provide competent admissible evidence 12 that Dr. Stoddard ever acted in such a way that would make Defendants liable for the intentional San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 torts which Plaintiff alleged against them. Because Plaintiff does not have facts to support her 14 allegations, she resorts to mis-stating evidence, ignoring case law, and misconstruing statutory 15 authority. Put simply, in opposing the instant motion, it is incumbent upon Plaintiff to “produce 16 substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v. 17 Paetkau (1998) 68 Cal.App.4th 151, 162 [emphasis added].) Plaintiff has objectively failed to meet 18 this burden. 19 The crux of Plaintiff’s Opposition is that that Dr. Stoddard lied to Ms. Scalla about her 20 having end-stage arthritis in 2015, and thus his recommendation of the total ankle replacement 21 (“TAR”) was improper. However, as fully set forth in Defendant’s accompanying evidentiary 22 objections, Plaintiff has presented no admissible evidence that Ms. Scalla did not in fact have end- 23 stage arthritis at the time Dr. Stoddard recommended the first TAR in 2015. 24 In support of her claims, Plaintiff introduced a woefully deficient declaration by William 25 Hoddick, M.D., wherein Dr. Hoddick concludes that the TAR was not indicated. However, the 26 Hoddick Declaration has no evidentiary value. Not only is Dr. Hoddick (a radiologist) not qualified 27 to opine upon whether Dr. Stoddard (a Doctor of Podiatric Medicine) could have reasonably 28 determined that a TAR was indicated, his declaration makes purely conclusory statements and fails -1- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 to disclose the basis of said opinions. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968-969; 2 Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) Moreover, the Hoddick Declaration fails entirely 3 to comply with the prerequisites set forth in Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 740- 4 743, and is therefore inadmissible to demonstrate the existence of a triable issue of material fact. 5 Indeed, Dr. Hoddick vaguely indicates that he reviewed “pre-operative x-rays” of the patient’s 6 ankle, 1 but he does not provide any other information to clarify what specific imaging he reviewed 7 and relied upon in forming his conclusory opinions. Is Dr. Hoddick reviewing images from 2005? 8 2010? 2015? The Court and Defendants are left guessing. The Hoddick Declaration should be 9 disregarded in its entirety. 10 Plaintiff also introduces excerpts of Christopher D. Kreulen, M.D.’s deposition transcript 11 in support of her Opposition. Plaintiff relies almost exclusively on Dr. Kreulen’s deposition 12 testimony to dispute Defendants’ statement of undisputed facts and to introduce new material facts. San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 However, Plaintiff frequently mischaracterizes Dr. Kreulen’s testimony, as Dr. Kreulen’s actual 14 testimony does not create a triable issue of material fact on any of the claims at issue in this motion. 15 For example, Plaintiff argues that Dr. Kreulen testified that no reasonable surgeon with Dr. 16 Stoddard’s skill and experience could have possibly found end-stage arthritis in Ms. Scalla’s foot 17 and ankle. However, Dr. Kreulen actually testified that based on his review of certain unidentified 18 x-rays, he did not find evidence of end-stage arthritis. 2 He did not conclude that Ms. Scalla lacked 19 any arthritis when Dr. Stoddard recommended at TAR in 2015, nor did give an opinion on whether 20 another similarly qualified surgeon could have found end-stage arthritis. Indeed, much of Dr. 21 Kreulen’s cited testimony involves him discussing the lack of evidence of end-stage arthritis on 22 non-weightbearing x-rays. Dr. Stoddard only took weightbearing x-rays, which Dr. Kreulen noted 23 was proper, as arthritis and deformity are difficult to see in non-weightbearing images. 3 Moreover, 24 Dr. Kreulen did not dispute Dr. Stoddard’s interpretation of Ms. Scalla’s weightbearing x-rays: 25 Radiologic Examination: Weight-bearing X-rays of the left foot & ankle, 2 views each, demonstrates severe arthritic changes to the tibiotalar, subtalar & 26 27 1 Exhibit C to Declaration of Daniel Weltin (Hoddick Declaration), page 2, lines 11-12. 2 28 Exhibit A to Declaration of Daniel Weltin (Kreulen Depo), page 60, lines 21-24. 3 Id. at page 51, lines 8-15; page 60, lines 5-20. -2- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION talonavicular joints, with peritalar subluxation/dislocation. There is also collapse of 1 the medial column of the foot, with an inferior calcaneal spur noted. 4 2 Dr. Kreulen simply disagreed with Dr. Stoddard’s conclusion that what was shown on the 3 weightbearing x-ray rose to the level of end-stage arthritis. 4 At most, Dr. Kreulen’s testimony establishes that two qualified medical professionals can 5 reasonably differ in what they consider end-stage arthritic presentation on an x-ray. As the Court 6 is aware, difference of opinion between medical professionals is inadequate to support a cause of 7 action for medical negligence, let alone causes of action for intentional tort. (Clemens v Regents 8 of University of California (1970) 8 Cal.App.3d 1, 13 [“A difference of medical opinion 9 concerning the desirability of one particular medical procedure over another does not, however, 10 establish that the determination to use one of the procedures was negligent.”].) “Medicine is not a 11 field of absolutes. There is not ordinarily only one correct route to be followed at any given time. 12 There is always the need for professional judgment as to what course of conduct would be most San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 appropriate with regard to the patient’s condition.” (Barton v Owen (1977) 71 Cal.App.3d 484, 14 501-502.) 15 Furthermore, Plaintiff’s argument regarding end-stage ankle arthritis relies on a 16 fundamental assumption for which she has no expert support: that a TAR must only be done if the 17 patient’s x-rays conclusively reveal end-stage ankle arthritis. While it is true that a TAR is a 18 treatment for end-stage ankle arthritis, Plaintiff presents no evidence that a TAR cannot be used to 19 treat similar debilitating ankle conditions which might not rise to the level of end-stage ankle 20 arthritis. As Dr. Chang explained in his declaration, when considering Ms. Scalla’s clinical 21 presentation, her description of her pain and symptoms, her unsuccessful prior treatment attempts, 22 as well as the x-rays, the TAR was indicated. 5 Plaintiff has not contradicted Dr. Chang’s expert 23 declaration submitted in support of Defendants’ motion, nor Dr. Stoddard’s original determination 24 in the medical records, wherein they conclude that based on Ms. Scalla’s entire clinical picture 25 (not just her x-rays), the TAR was indicated. 26 /// 27 4 28 Exhibit G to Declaration of Robert Deering (Foot & Ankle Clinic Records), Scalla-SSDPM-00019. 5 Declaration of Thomas Chang, DPM, para. 23-26. -3- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Plaintiff also states that Dr. Kreulen’s testimony supports her contention that diabetic 2 neuropathy is a contraindication for a TAR, such that no reasonable surgeon would perform a TAR 3 on a diabetic patient like Ms. Scalla. However, Dr. Kreulen did not testify about whether diabetic 4 neuropathy is a contraindication for a TAR. Plaintiff has presented no evidence in support of her 5 claims that Ms. Scalla’s diabetic condition meant that Dr. Stoddard should not have performed the 6 TAR. 7 Finally, Plaintiff spends multiple pages in her Separate Statement and Opposition 8 discussing how Dr. Stoddard improperly performed the surgeries. Plaintiff is critical of the way he 9 used cement in Ms. Scalla’s ankle and is convinced that what Dr. Kreulen found when he 10 amputated Ms. Scalla’s left lower extremity reveals that Dr. Stoddard did not perform the surgeries 11 within the standard of care. Plaintiff’s focus on Dr. Stoddard’s surgical technique underscores the 12 true issue of this case: whether Dr. Stoddard was medically negligent in his care and treatment of San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 Ms. Scalla. Yet, Defendants did not move for summary adjudication on the medical negligence 14 claim. No matter how much evidence Plaintiff introduces to show that Dr. Stoddard failed to 15 uphold the standard of care, such evidence does not create a triable issue of fact for any of her 16 intentional tort claims. 17 Because Plaintiff has failed to provide relevant, admissible evidence in support of her 18 claims for fraud, concealment, battery, assault, intentional infliction of emotional distress, and 19 dependent adult abuse, Defendants request the Court grant their Motion for Summary Adjudication 20 in its entirety. 21 II. ARGUMENT 22 The issues which Plaintiff claims are triable issues of fact are not actually supported by any 23 admissible evidence before this Court. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 24 Cal.App.4th 1098, 1105 [“The evidence must be of sufficient quality to allow the trier of fact to 25 find the underlying fact in favor of the party opposing the motion for summary judgment.”] [citing 26 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850].) As fully explained in Defendants’ 27 moving papers, Plaintiff cannot oppose Defendants’ Motion for Summary Adjudication with 28 “assertion[s] based solely on conjecture and speculation.” (Sanchez v. Swinerton & Walber Co. -4- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 (1996) 47 Cal.App.4th 1461, 1465 [internal quotation marks omitted].) “The plaintiff cannot meet 2 his burden of demonstrating a triable issue where his evidence merely provides ‘a dwindling 3 stream of probabilities that narrow into conjecture.’” (Nardizzi v. Harbor Chrysler Plymouth Sales, 4 Inc. (2006) 136 Cal.App.4th 1409, 1415 [quoting Lineaweaver v. Plant Insulation Co. (1995) 31 5 Cal.App.4th 1409, 1421].) 6 A. Plaintiff Fails to Raise a Triable Issue of Fact for the Fraud Cause of Action 7 Plaintiff fails to raise a triable issue of fact on two key elements of fraud: knowledge of 8 falsity and intent to defraud. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 9 974.) 10 Plaintiff argues Defendant fraudulently obtained her consent for the first surgery by lying 11 to her about the fact that she had end-stage ankle arthritis. However, as discussed above, Plaintiff 12 has only presented evidence that one other doctor disagreed with Dr. Stoddard’s conclusion that San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 she had end-stage ankle arthritis based on his review of unidentified x-rays. Plaintiff does not 14 present conclusive evidence that no reasonable doctor in Dr. Stoddard’s position could have 15 evaluated her and found end-stage ankle arthritis, such that Dr. Stoddard knew his diagnosis of 16 end-stage ankle arthritis was false. 17 Plaintiff also argues Defendant lied to her about having persistent adult acquired flat foot 18 deformity in order to convince her to undergo the second surgery to repair her mid-foot arch. Yet, 19 Plaintiff provides no evidence that she lacked persistent adult acquired flat foot deformity. 20 Similarly, Plaintiff argues Dr. Stoddard lied about the need to remove the plate in her foot, but 21 does not contradict his assessment that the plate did need to be removed because it was causing 22 irritation and infection. (UMF 51.) 23 Furthermore, Plaintiff presents no evidence that Dr. Stoddard intended to harm her. Rather, 24 she concludes that because Dr. Kreulen did not find end-stage ankle arthritis in her x-rays, Dr. 25 Stoddard must have intended to deceive her. “The court must consider presumptions and draw 26 inferences from the facts adduced where the inference is the only reasonable one which may be 27 drawn.” (Sanchez v. Swinerton & Walber Co., supra, 47 Cal.App.4th at 1465 [emphasis added].) 28 Plaintiff’s conclusion is not the only reasonable conclusion. Given the evidence before the court, -5- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Plaintiff’s conclusion is not even reasonable. Indeed, Defendants’ moving papers were supported 2 by a duly qualified expert, Dr. Chang, who opined that Dr. Stoddard’s clinical judgment, 3 diagnoses, and surgical technique were reasonable. Plaintiff’s failure to even attempt to oppose 4 this declaration is dispositive on the issue of intent. 5 When opposing a Motion for Summary Adjudication, the opposing party cannot controvert 6 the moving party’s evidence with declarations “based on speculation, imagination, guess work, or 7 mere possibilities.” (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481.) Speculation, 8 imagination, guess work, or mere possibilities appropriately summarizes the entirety of Plaintiff’s 9 Opposition. It would be unjust, inequitable, and contrary to established precedent to require Dr. 10 Stoddard, a member of this community, to continue to defend against allegations of fraud under 11 these circumstances. 12 Having failed to produce any evidence that Dr. Stoddard made intentional San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 misrepresentations to Ms. Scalla, the Court should grant Defendants’ Motion for Summary 14 Adjudication as to Plaintiff’s cause of action for fraud. 15 B. Plaintiff Does Not Raise a Triable Issue of Fact for Concealment 16 The tort of concealment involves concealing or suppressing a material fact. (Boschma v. 17 Home Loan Center, Inc. (2011) 198 Cal.Ap.4th 230, 248.) Plaintiff’s entire argument for her 18 concealment cause of action rests on Dr. Stoddard concealing material “facts” which she cannot 19 actually prove are facts. 20 Plaintiff contends that Dr. Stoddard concealed the “fact” that the surgeries were not 21 indicated. Yet, she did not dispute Dr. Chang’s declaration wherein he concluded that they were 22 indicated. Moreover, her primary allegation in her concealment claim is that Dr. Stoddard 23 concealed the “fact” that her diabetes was a contraindication for a TAR. However, Plaintiff has 24 presented no evidence that diabetes is actually a contraindication for any of the surgeries which 25 Dr. Stoddard performed. 26 Again, Plaintiff’s Opposition forces the Court to engage in speculation and guesswork. 27 Plaintiff has failed to meet her burden and has failed prove the existence of any material facts 28 -6- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 which Dr. Stoddard could have concealed; therefore, summary adjudication is appropriate for this 2 cause of action. 3 C. There is No Triable Issue of Fact for Plaintiff’s Battery Claim 4 Consent is a complete bar to the tort of battery. (Civ. Code § 3515.) In her Opposition, 5 Plaintiff does not dispute the existence or validity of the consent forms which she signed prior to 6 each surgery. She does not argue that she did not understand what she was signing, nor that the 7 documents were something other than valid consent forms. Rather, her sole argument is that she 8 was fraudulently induced into signing said consent forms by Dr. Stoddard’s intentional 9 misrepresentations of her clinical condition and his concealment of material facts. As Plaintiff 10 cannot prove that Dr. Stoddard made any intentional misrepresentations nor concealed any 11 material facts, there is no triable issue of fact on the issue of consent. Accordingly, summary 12 judgment is appropriate for her claim of battery. San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 Plaintiff attempts to argue that Dr. Stoddard stillcommitted a medical battery, because 14 Plaintiff’s consent was conditional on her having end-stage ankle arthritis. However, Plaintiff has 15 submitted no evidence in support of this alleged condition on her consent. Plaintiff gave her 16 consent to Dr. Stoddard to perform the surgeries based on his assessment of her overall clinical 17 picture. She never expressly conditioned her consent for any of the surgeries on her first being 18 conclusively diagnosed with end-stage ankle arthritis. Moreover, in order for Defendants to be 19 liable for this type of medical battery the provider must “intentionally violate the condition on the 20 consent while treating plaintiff.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1485-1486.) 21 Plaintiff has presented no evidence that Dr. Stoddard was aware that Ms. Scalla did not actually 22 have end-stage arthritis. 23 D. There is No Triable Issue of Fact for Plaintiff’s Claim of Assault 24 Like with battery, consent is a complete bar to the tort of assault. (Civ. Code § 3515.) As 25 described above, Plaintiff consented to each of the surgeries Dr. Stoddard performed. 26 Furthermore, Plaintiff’s persistence in arguing that there is a triable issue of fact on the 27 cause of action for assault demonstrates that Plaintiff does not understand the tort of assault, and 28 calls into question the credibility of her arguments in entirety of her Opposition. “The tort of assault -7- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 is complete when the anticipation of harm occurs.” (Kiseskey v. Carpenters’ Trust for So. 2 California (1983) 144 Cal.App.3d 222, 232 [emphasis added].) Plaintiff did not anticipate any 3 harm prior to the surgeries, beyond the pain inherent to the surgery to which she had consented. 4 Even if it were true that Plaintiff found out at a later date that Dr. Stoddard misrepresented that the 5 surgeries were indicated, that later-discovered fact cannot support a cause of action for assault, 6 where the fear must happen prior to the harm. (Ibid.) Accordingly, Plaintiff has failed to raise a 7 triable issue of fact for her claim of assault. 8 E. There is No Issue of Fact for Intentional Infliction of Emotional Distress 9 In order for Plaintiff to succeed on this cause of action, she must prove the existence of 10 “extreme and outrageous conduct by the defendant with the intention of causing, or reckless 11 disregard of the probability of causing, emotional distress.” (Hughes v. Pair (2009) 46 Cal.4th 12 1035, 1050 [internal quotation marks omitted].) “A defendant's conduct is ‘outrageous’ when it is San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at 1050- 14 1051 [internal quotation marks omitted].) 15 While consent is not always a defense to intentional infliction of emotional distress like it 16 is for assault and battery, the fact that Plaintiff gave her consent in this case undercuts her claim 17 for intentional infliction of emotional distress. Common sense dictates that a surgeon performing 18 a surgery to which the patient has consented does not constitute extreme and outrageous conduct 19 which would “exceed all bounds of that usually tolerated in a civilized community.” Moreover, 20 medical negligence, such as not performing surgeries within the standard of care, cannot support 21 a claim for intentional infliction of emotional distress. Even if Dr. Stoddard did not uphold the 22 standard of care in performing the surgeries does not mean his conduct was “extreme and 23 outrageous.” Having failed to raise a triable issue of fact that Dr. Stoddard acted outrageously in 24 performing surgeries which he reasonably believed were indicated, the Court should grant 25 Defendants’ motion as to the intentional infliction of emotional distress claim. 26 F. Plaintiff Fails to Establish a Triable Issue of Fact for Dependent Adult Abuse 27 Because Plaintiff’s complaint was vague on the issue of dependent adult abuse, 28 Defendants’ motion addressed two code sections under which Plaintiff could, in theory, have -8- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 brought her claim for physical dependent adult abuse. The first is physical abuse as it is defined in 2 Welfare & Institutions Code Section 15610.63. As is relevant here, this type of physical abuse is 3 defined as battery. As explained above, Plaintiff has failed to establish a triable issue of fact for 4 battery, thus her dependent adult abuse claim also fails, if it was predicated on Section 15610.63. 5 Alternatively, Plaintiff could have brought her dependent adult abuse claim under Welfare 6 & Institutions Code Section 15610.07(2), which would require that Plaintiff prove Dr. Stoddard 7 was her care custodian. Plaintiff’s argument that there is a triable issue of fact regarding whether 8 Dr. Stoddard could be a care custodian ignores the clear case law on the issue. A custodial 9 relationship is a “relationship where a certain party has assumed a significant measure of 10 responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully 11 competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer 12 Medical Group, Inc (2016) 63 Cal.4th 148, 158.) For example, a care custodian would be San Rafael, CA 94901 J SUPPLE LAW, PC 990 Fifth Avenue 13 responsible for helping the dependent adult perform basic daily task such as toileting, eating, and 14 drinking. (Ibid. [citing Welf. & Inst. Code, § 15610.57].) As noted in Plaintiff’s Separate 15 Statement, “Plaintiff was a dependent adult being cared for by her son paid by the Department of 16 Health Care Services.” (AMF No. 50 [emphasis added].) Ms. Scalla’s son was her care custodian, 17 not Dr. Stoddard. As a result, Plaintiff’s cause of action for dependent adult abuse fails and 18 Defendants’ Motion for Summary Adjudication should be granted. 19 G. Plaintiff Did Not Establish a Triable Issue of Fact as to Either Stoddard Entity 20 Plaintiff does not dispute that Dr. Stoddard was the sole owner and operator of the Stoddard 21 Entities. (UMF 91.) Plaintiff also did not introduce any material facts pertaining to either of the 22 Stoddard Entities which would make them independently liable even if Dr. Stoddard was not liable 23 for the above-discussed causes of action. Accordingly, as Dr. Stoddard is entitled to summary 24 adjudication, so are the Stoddard Entities. 25 /// 26 /// 27 /// 28 /// -9- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 III. CONCLUSION 2 As Plaintiff has failed to establish a triable issue of fact for any of her claims for fraud, 3 concealment, battery, assault, intentional infliction of emotional distress, and dependent adult 4 abuse, Defendants respectfully request the Court grant their Motion for Summary Adjudication in 5 its entirety. 6 7 Dated: August 21, 2020 J SUPPLE LAW A Professional Corporation 8 9 10 11 12 San Rafael, CA 94901 J SUPPLE LAW, PC By: 990 Fifth Avenue JOHN L. SUPPLE 13 ROBERT R. DEERING 14 LEAH S. GRAY 15 Attorneys for Defendants SEAN STODDARD, DPM; SEAN 16 STODDARD, LLC; and FOOT AND ANKLE CLINIC OF NORTHERN CALIFORNIA, INC. 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION