Preview
E-FILED
4/1/2021 2:47 PM
1 LAW OFFICES OF Superior Court of California
EDWARD B. CHATOIAN County of Fresno
2607 Fresno Street, Suite C
2 Fresn o, Californ ia
93721
TELEPH O N E (559) 485-0101
FAX (559) 485-7643
By: E Alvarado, Deputy
3
4 EDWARD B. CHATOIAN II #63957
5 Attorneys for Plaintiffs, LAURA MILLER, GLENN GILBERT
and LANA WHITWORTH
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF FRESNO
10 *****
11 LAURA MILLER, GLENN GILBERT, and ) Case No. 19CECG02595
LANA WHITWORTH, ) Assigned to the Hon. Kimberly Gaab
12 ) Action Filed: 07/17/19
Plaintiffs, ) Trial Date: 06/14/2021
13 )
vs. )
14 )
KAWEAH DELTA HEALTHCARE, INC., )
15 dba KAWEAH DELTA MEDICAL )
CENTER, VALLEY HOSPITALIST )
16 MEDICAL GROUP, INC., FRESNO )
COMMUNITY HOSPITAL AND MEDICAL )
17 CENTER, SAINT AGNES MEDICAL )
CENTER, VITUITY HOSPITALISTS PC, )
18 UNIVERSITY FACULTY ASSOCIATES, )
INC., and DOES 1 to 50. )
19 )
Defendants. )
20 )
21
22 PLAINTIFFS LAURA MILLER, GLENN GILBERT & LANA
WHITWORTH’S MEMORANDUM OF POINTS AND
23 AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH
DELTA HEALTHCARE DISTRICT’S MOTION FOR SUMMARY
24 JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
25 Date: April 15, 2021
Time: 3:30 p.m.
26 Dept: 503, Hon. Kimberly A. Gaab
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1 Plaintiffs LAURA MILLER, GLENN GILBERT and LANA WHITWORTH
2 (hereinafter “Plaintiffs”) hereby submit this Memorandum of Points and Authorities in Opposition
3 to Defendant KAWEAH DELTA HEALTH CARE DISTRICT’S (hereinafter “Defendant”)
4 Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
5 I
6 INTRODUCTION
7 This action arises out of the care and treatment provided to Decedent Phyllis
8 Gilbert by Defendant through it’s staff. Plaintiffs herein are the mother and children of Mrs.
9 Gilbert and are seeking damages arising from the death of Mrs. Gilbert.
10 II
11 FACTS
12 For purposes of this opposition only, Plaintiffs do not dispute the factual allegations
13 as put forth by Defendant at page 1, lines 14 through 22 of it’s Memorandum of Points and
14 Authorities in support of it’s motion. [Except to say that there appears to be a typographical error
15 in Defendant’s points and authorities at page 1, lines 21-22, wherein it refers to it’s undisputed
16 material fact no. 4--Plaintiffs believe that reference was intended to refer to it’s undisputed
17 material fact no. 3.]
18 III
19 LEGAL ARGUMENT
20 A. Summary Judgment/Adjudication Standard
21 Summary judgment requires a three-pronged analysis which consists of (1) an
22 examination of the pleadings to determine what the exact issues are, (2) a determination of
23 whether the moving party has established facts to negate their opponent’s claims and (3) a
24 determination of whether the opponent has demonstrated a triable issue of material fact. (CDF
25 Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1236-1237; Marintez v. Enterprise Rent-
26 A-Car Co. (2004) 119 Cal.App.4th 46, 52-53; Lease & Rental Management Corp. v. Arrowhead
27 Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.) The facts are to be applied to the
28 law to determine whether the moving party has met it’s initial burden and, if so, whether the
1
Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 opposing evidence established a triable issue. (Distefano v. Forester (2001) 85 Cal.App.4th 1249,
2 1264-1265; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355.)
3 The moving party must present evidence to establish, conclusively, that an essential
4 element of the opposing party’s case is not and cannot reasonably be established and demonstrate
5 that under no hypothesis is there a material issue of fact that requires the process of trial. (Miller
6 v. Department of Corrections (2005) 36 Cal.4th 446, 460 citing Saelzer v. Advanced Group 400
7 (2001) 25 Cal.4th 763, 768; Barber v. Marina Sailing Inc. (1995) 36 Cal.App.4th 558, 562; Flait v.
8 North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 474; Molko v. Holy Spirit Assn. (1988) 46
9 Cal.3d 1092, 1107; Eastern Aviation Group v. Airborne Express (1992) 6 Cal.App.4th 1448,
10 1451.) The burden faced by a defendant is unaffected by the strength of any showing made by a
11 plaintiff. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Where the
12 moving party fails to meet this burden, the opposing party need make no showing at all. (Binder v.
13 Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)
14 In opposition, the plaintiff need only establish the challenged cause of action has
15 minimal merit. A Plaintiff can establish proof of the matters alleged in the complaint via
16 declaration to raise a triable question of fact. (Cochran v. Linn (1984) 159 Cal.App.3d 245,
17 249-250; Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596; Hayward Union etc. School District
18 v. Madrid (1965) 234 Cal.App.2d 100, 120.) There is a triable issue of material fact if the
19 evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party
20 opposing the motion in accordance with the applicable standard of proof. (Jennifer C. v. Los
21 Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1326.) If Plaintiff makes this
22 showing of merit, the motion must be denied. (Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 375-
23 376 citing Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 850.)
24 In determining whether a triable issue of material fact exists, the moving party’s
25 evidence is strictly construed while that of the opposing party is liberally construed. (Essex Ins. v.
26 Heck (2010) 186 Cal.App.4th 1513, 1522; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-
27 126; Binder, supra, at 839; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex
28 R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72.) All doubts
2
Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 as to whether any material issues of fact exist are to be resolved in favor of the opposing party.
2 (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556; Wiz Technology Inc. v. Coopers & Lybrand
3 LLP (2003) 106 Cal.App.4th 1, 10.) This difference in construing the evidence is necessary "in
4 order to avoid unjustly depriving the plaintiff of a trial." (Brantley v. Pisaro (1996) 42
5 Cal.App.4th 1591, 1601.)
6 The motion must establish a complete defense or otherwise show there is no factual
7 basis for relief on any theory reasonably contemplated by the complaint. (Joslin v. Marin Mun.
8 Water Dist. (1967) 67 Cal.2d 132, 148-149; Canifax v. Hercules Powder Co. (1965) 237
9 Cal.App.2d 44, 50; see also Chevron USA v. Superior Court (1992) 4 Cal.App.4th 544, 548
10 [moving party must show that under no possible hypothesis within the reasonable purview of the
11 allegations of the complaint is there a material question of fact which requires examination by
12 trial].) A party cannot succeed without disproving even those claims on which the opponent
13 would have the burden of proof at trial. (Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123,
14 127; Miller v. Metzinger (1979) 91 Cal.App.3d 31, 42.)
15 It is not enough for a defendant to show merely that a plaintiff "has no evidence" on
16 a key element of the plaintiff's claim. The defendant must also produce evidence showing that the
17 plaintiff cannot reasonably obtain evidence to support that claim. (Gaggero v. Yura (2003) 108
18 Cal.App.4th 884, 891.)
19 B. Defendant Failed To Meet It’s Burden
20 1. Defendant’s Issue Nos. 1 & 2
21 Defendant maintains Plaintiffs cannot show the standard of care was breached,
22 relying entirely on the Declaration of Brian Bernardy, a Registered Nurse. For the reasons set
23 forth below, Mr. Bernardy’s declaration alone is insufficient to establish that Defendant has met
24 it’s burden of showing Plaintiffs have not, and cannot, establish a triable issue of material fact.
25 (a) Brian Bernady is Not Qualified to Render Expert
Opinion on the Standard of Care of All Medical
26 Providers Involved in Mrs. Gilbert’s Course of Treatment
27 Plaintiffs’ First Cause of Action alleges acts and/or omissions by Defendant’s staff
28 who are alleged to be “. . . health care providers licensed in California pursuant to Business &
3
Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 Professions Code Sections 200 through 2459" and specifically includes “ . . . physicians, surgeons,
2 and nurses”. [Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material
3 Facts (hereinafter “PUMF”), No. 29.] Plaintiffs’ allegations are not limited to care/treatment that
4 took place in the emergency department. Plaintiffs’ allegations extend to “in patient hospital
5 treatment.” [PUMF No. 30.]
6 Even assuming, arguendo, that Mr. Bernardy is qualified to give expert opinion on
7 the standard of care, that opinion extends to, and is only admissible as to, registered nurses.
8 California Evidence Code §801(b) requires that where a witness is testifying as an expert, his/her
9 testimony in the form of an opinion is limited to matter within his special knowledge, skill,
10 experience, training, and education. Therefore, a registered nurse is not qualified to give expert
11 opinion as to the acts/omissions of physicians/surgeons. Likewise, as to the emergency room
12 physicians/surgeons, California Health & Safety Code §1799.110(c) requires that in any action for
13 damages involving a claim of negligence against a healthcare provider of emergency medical
14 coverage for a general acute care hospital emergency department, the court shall admit expert
15 medical testimony only from physicians and surgeons who have had substantial professional
16 experience within the last five years while assigned to provide emergency medical coverage in a
17 general acute care hospital emergency department. (Health & Safety Code §1799.110(c); see also
18 Stokes v. Baker (2019) 35 Cal.App.5th 946, 966 [§1799.110(c) applies to experts rendering
19 opinions on the standard of care required of an emergency room physician].) This statute applies
20 even where a physician has not been named as a defendant. (Jutzi v. County of Los Angeles
21 (1987) 196 Cal.App.3d 637, 647.)
22 The evidence presented by Defendant in support of it’s motion reflects that at least
23 13 physicians/surgeons were involved during the course of Mrs. Gilbert’s care. Those
24 physicians/surgeons include: James Kuo DO, Glade Roper MD, Ephraim Nsien MD, Bruce Le
25 DO, Gregory Warner MD, Reuben Castillo MD, Steven Carsten DO, Theresa Yuh MD, Dale
26 Yeatts MD, Namrita Bopari MD, Mark Sobers MD, Jesse Menchaca MD, Quynh Dang MD.
27 [PUMF No. 31.] Defendant has presented no declaration from any qualified expert
28 physician/surgeon or a physician/surgeon having substantial professional experience within the last
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Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 five years while assigned to provide emergency medical coverage in a general acute care hospital
2 emergency department. Therefore, Defendant has failed to establish that the physicians/surgeons
3 involved in Mrs. Gilbert’s case, whether they worked in the emergency department or otherwise,
4 met the applicable standard of care.
5 A defendant's expert declaration must be detailed, fully explaining the basis for the
6 opinion and the facts relied upon. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125; Kelley
7 v. Trunk (1998) 66 Cal.App.4th 519, 521, 524—525; Griffith v. County of Los Angeles (1968)
8 267 Cal.App.2d 837, 847.) Mr. Bernardy’s declaration refers to “staff” when giving his ultimate
9 opinions while the basis for his opinions discuss “non-physician staff.” For example, Mr.
10 Bernardy’s declaration states “it is my opinion that the KDMC staff each met the standard of care
11 in all aspects of their respective care and treatment . . .” [at pg. 5, line 28 through page 6, line 1,
12 emphasis added]; “it is my opinion that there was no negligence or misdiagnosis by the KDMC
13 staff in assessing and treating Decedent” [at pg. 6, lines 2-3, emphasis added]; “no act or
14 omission by KDMC staff caused Decedent’s death” [at pg. 7, lines 3-4, emphasis added]. As to
15 the basis for his opinions he states “It is not the responsibility of non-physician staff to assess,
16 diagnose, or order treatment of a patient” [at pg. 6, lines 3-4, emphasis added]; “non-physician
17 staff such as the KDMC staff are not charged with assessing, diagnosing, or creating treatment
18 plans” [at pg. 7, lines 2-3, emphasis added].
19 Defendant’s Separate Statement of Undisputed Material Facts also draws a
20 distinction between “staff” and “non-physician staff”. Defendant’s Undisputed Material Facts
21 Nos. 6, 12 and 13 claim Mr. Bernardy’s opinions relate to the “non-physician staff” but the cited
22 supporting evidence for those facts does not line up with this contention, rather it refers to “staff”
23 only. Thus, Mr. Bernardy’s declaration is vague and lacks sufficient details. An expert's opinion,
24 even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los
25 Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58.)
26 As Mr. Bernardy, by virtue of being a non-physician, can only be qualified to testify
27 as to non-physician staff, in order for Defendant to meet it’s burden of showing Plaintiff has not
28 and cannot establish a triable issue of material fact, it was necessary for Defendant to either submit
5
Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 a declaration specifically and conclusively establishing that it did not employ any
2 physician/surgeons involved in Mrs Gilbert’s case on the day in question or a declaration from a
3 qualified expert(s) attesting to the fact that none of the physicians/surgeons involved in Mrs.
4 Gilbert’s case on the day in question fell below the standard of care. Defendant did neither of
5 these things.
6 Defendant has failed to meet it’s burden. Thus, Plaintiffs need make no showing at
7 all. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)
8 C. Defendant’s Issue No. 3
9 Plaintiffs concede that Laura Miller was not dependent upon Mrs. Gilbert at the
10 time of her passing.
11 IV
12 CONCLUSION
13 Defendant failed to meet it’s burden as to it’s Issue Nos. 1 and 2. Therefore,
14 Plaintiffs need make no showing as to Issue Nos. 1 and 2. As to Issue No. 3, Plaintiffs concede
15 Laura Miller was not dependent upon Mrs. Gilbert at the time of her passing.
16 Dated: April 1, 2021
LAW OFFICES OF EDWARD B. CHATOIAN
17
18
By________________________________
19 EDWARD B. CHATOIAN II
Attorneys for Plaintiff
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Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF FRESNO
3 I am a resident of the county aforesaid; I am over the age of eighteen years and not
a party to the within entitled action; my business address is 2607 Fresno Street, Fresno, California
4 93721.
5 On April 1, 2021, I served the within PLAINTIFFS LAURA MILLER, GLENN
GILBERT & LANA WHITWORTH’S MEMORANDUM OF POINTS AND
6 AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH DELTA HEALTHCARE
DISTRICT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
7 SUMMARY ADJUDICATION on the interested parties in said action, as listed below:
8 SEE ATTACHED SERVICE LIST.
9 [ ] BY FACSIMILE - I caused such document(s) to be transmitted by facsimile transmission
to the number(s) listed above. No error was reported by the machine.
10
[XX] BY U.S. MAIL - By placing the document(s) in a sealed envelope, addressed as provided,
11 and placed for deposit with the U.S. Postal Service in accordance with the firm’s ordinary
business practices. I am readily familiar with the firm's practice of collection and
12 processing of documents for mailing. Under that practice, the envelope would be
deposited with the United States Postal Service in the ordinary course of business on that
13 same day with postage thereon fully prepaid at Fresno, California. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date of
14 postage meter date is more than one day after date of deposit for mailing in affidavit.
15 [ ] BY EXPRESS MAIL, FEDERAL EXPRESS OR UNITED PARCEL SERVICE - By
placing the document(s) in an approved sealed package requesting overnight delivery,
16 addressed as provided, and placed for deposit with or delivery to an express carrier in
accordance with the firm’s ordinary business practices. I am readily familiar with the
17 firm's practice of collection and processing of documents for overnight delivery. Under
that practice, the envelope or package would be deposited with or delivered to a service
18 providing for overnight delivery, on that same day, with fees paid or provided for as
follows: 1) Deposit in an office, box, chute, facility regularly maintained by an express
19 service carrier for the deposit of express deliveries; or 2) Delivery to a courier or driver
authorized by the carrier to receive such documents.
20
[XX] BY ELECTRONIC SERVICE - C.C.P. §1010.6. I caused such document(s) to be
21 transmitted by electronic service to the person named above at the electronic mail
addressed listed above. I did not receive any electronic message or indication that the mail
22 was undeliverable.
23 I declare under penalty of perjury under the laws of the State of California, that the
foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing of
24 my own knowledge.
25 Executed on April 1, 2021, at Fresno, California.
26
___________________________________
27 LISA J. PROFERA
28
1 SERVICE LIST
2 Mr. Mark B. Canepa
Ms. Jennifer M. Mele
3 WHITE | CANEPA LLP
7690 North Palm Ave., Suite 105
4 Fresno, CA 93711
FAX NO. (559) 439-0802
5 mcanepa@whitecanepa.com
Represents Fresno Community
6
Mr. Jerry D. Jones
7 STAMMER, McKNIGHT, BARNUM & BAILEY
2540 West Shaw Lane, Suite 110
8 Fresno, CA 93711
FAX NO. (559) 432-2619
9 jerry@smbblaw.com
Represents University Faculty Assoc.
10
Mr. Dennis R. Thelen
11 Mr. Kevin E. Thelen
LeBEAU THELEN, LLP
12 P. O. Box 12092
Bakersfield, CA 93389-2092
13 FAX NO. (661) 325-1127
dthelen@lebeauthelen.com
14 Represents Valley Hospitalist
15 Mr. Jerry D. Casheros
McCORMICK BARSTOW LLP
16 7647 North Fresno Street
Fresno, CA 93720
17 FAX NO. (559) 433-2300
jerry.casheros@mccormickbarstow.com
18 Represents Saint Agnes
19 Mr. James C. Schaeffer
Ms. Jennifer B. Saccomano
20 SCAHEFFER COTA ROSEN LLP
500 Esplanade Drive, Suite 950
21 Oxnard, CA 93036
FAX NO. (805) 988-9292
22 jschaeffer@scr-legal.com
Represents CEP (Vituity)
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1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF FRESNO
3 I am a resident of the county aforesaid; I am over the age of eighteen years and not
a party to the within entitled action; my business address is the Law Offices of Edward B.
4 Chatoian, 2607 Fresno Street, Suite C, Fresno, California 93721. My electronic service address is
chatoianlaw@sbcglobal.net.
5
On April 1, 2021, I served the within PLAINTIFFS LAURA MILLER, GLENN
6 GILBERT & LANA WHITWORTH’S MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH DELTA HEALTHCARE
7 DISTRICT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION on the interested parties in said action, as listed below:
8
Mr. Richard J. Salinas
9 Mr. Justin J. Lee
SALINAS LAW GROUP, INC.
10 8405 North Fresno St., Suite 150
Fresno, CA 93720
11 FAX NO. (559) 438-8363
rsalinas@salinaslg.com
12 Represents Kaweah Delta
13 [XX] BY PERSONAL SERVICE - By placing the document(s) in a sealed envelope, addressed
as provided, and delivered by personal delivery to the addressee or office of the addressee.
14
I declare under penalty of perjury under the laws of the State of California, that the
15 foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing of
my own knowledge.
16
Executed on April 1, 2021, at Fresno, California.
17
___________________________________
18 LISA J. PROFERA
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Preview
E-FILED 4/1/2021 2:47 PM 1 LAW OFFICES OF Superior Court of California EDWARD B. CHATOIAN County of Fresno 2607 Fresno Street, Suite C 2 Fresn o, Californ ia 93721 TELEPH O N E (559) 485-0101 FAX (559) 485-7643 By: E Alvarado, Deputy 3 4 EDWARD B. CHATOIAN II #63957 5 Attorneys for Plaintiffs, LAURA MILLER, GLENN GILBERT and LANA WHITWORTH 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF FRESNO 10 ***** 11 LAURA MILLER, GLENN GILBERT, and ) Case No. 19CECG02595 LANA WHITWORTH, ) Assigned to the Hon. Kimberly Gaab 12 ) Action Filed: 07/17/19 Plaintiffs, ) Trial Date: 06/14/2021 13 ) vs. ) 14 ) KAWEAH DELTA HEALTHCARE, INC., ) 15 dba KAWEAH DELTA MEDICAL ) CENTER, VALLEY HOSPITALIST ) 16 MEDICAL GROUP, INC., FRESNO ) COMMUNITY HOSPITAL AND MEDICAL ) 17 CENTER, SAINT AGNES MEDICAL ) CENTER, VITUITY HOSPITALISTS PC, ) 18 UNIVERSITY FACULTY ASSOCIATES, ) INC., and DOES 1 to 50. ) 19 ) Defendants. ) 20 ) 21 22 PLAINTIFFS LAURA MILLER, GLENN GILBERT & LANA WHITWORTH’S MEMORANDUM OF POINTS AND 23 AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH DELTA HEALTHCARE DISTRICT’S MOTION FOR SUMMARY 24 JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 25 Date: April 15, 2021 Time: 3:30 p.m. 26 Dept: 503, Hon. Kimberly A. Gaab 27 28 1 Plaintiffs LAURA MILLER, GLENN GILBERT and LANA WHITWORTH 2 (hereinafter “Plaintiffs”) hereby submit this Memorandum of Points and Authorities in Opposition 3 to Defendant KAWEAH DELTA HEALTH CARE DISTRICT’S (hereinafter “Defendant”) 4 Motion for Summary Judgment or, in the Alternative, Summary Adjudication. 5 I 6 INTRODUCTION 7 This action arises out of the care and treatment provided to Decedent Phyllis 8 Gilbert by Defendant through it’s staff. Plaintiffs herein are the mother and children of Mrs. 9 Gilbert and are seeking damages arising from the death of Mrs. Gilbert. 10 II 11 FACTS 12 For purposes of this opposition only, Plaintiffs do not dispute the factual allegations 13 as put forth by Defendant at page 1, lines 14 through 22 of it’s Memorandum of Points and 14 Authorities in support of it’s motion. [Except to say that there appears to be a typographical error 15 in Defendant’s points and authorities at page 1, lines 21-22, wherein it refers to it’s undisputed 16 material fact no. 4--Plaintiffs believe that reference was intended to refer to it’s undisputed 17 material fact no. 3.] 18 III 19 LEGAL ARGUMENT 20 A. Summary Judgment/Adjudication Standard 21 Summary judgment requires a three-pronged analysis which consists of (1) an 22 examination of the pleadings to determine what the exact issues are, (2) a determination of 23 whether the moving party has established facts to negate their opponent’s claims and (3) a 24 determination of whether the opponent has demonstrated a triable issue of material fact. (CDF 25 Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1236-1237; Marintez v. Enterprise Rent- 26 A-Car Co. (2004) 119 Cal.App.4th 46, 52-53; Lease & Rental Management Corp. v. Arrowhead 27 Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.) The facts are to be applied to the 28 law to determine whether the moving party has met it’s initial burden and, if so, whether the 1 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 opposing evidence established a triable issue. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 2 1264-1265; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355.) 3 The moving party must present evidence to establish, conclusively, that an essential 4 element of the opposing party’s case is not and cannot reasonably be established and demonstrate 5 that under no hypothesis is there a material issue of fact that requires the process of trial. (Miller 6 v. Department of Corrections (2005) 36 Cal.4th 446, 460 citing Saelzer v. Advanced Group 400 7 (2001) 25 Cal.4th 763, 768; Barber v. Marina Sailing Inc. (1995) 36 Cal.App.4th 558, 562; Flait v. 8 North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 474; Molko v. Holy Spirit Assn. (1988) 46 9 Cal.3d 1092, 1107; Eastern Aviation Group v. Airborne Express (1992) 6 Cal.App.4th 1448, 10 1451.) The burden faced by a defendant is unaffected by the strength of any showing made by a 11 plaintiff. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Where the 12 moving party fails to meet this burden, the opposing party need make no showing at all. (Binder v. 13 Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) 14 In opposition, the plaintiff need only establish the challenged cause of action has 15 minimal merit. A Plaintiff can establish proof of the matters alleged in the complaint via 16 declaration to raise a triable question of fact. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 17 249-250; Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596; Hayward Union etc. School District 18 v. Madrid (1965) 234 Cal.App.2d 100, 120.) There is a triable issue of material fact if the 19 evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party 20 opposing the motion in accordance with the applicable standard of proof. (Jennifer C. v. Los 21 Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1326.) If Plaintiff makes this 22 showing of merit, the motion must be denied. (Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 375- 23 376 citing Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 850.) 24 In determining whether a triable issue of material fact exists, the moving party’s 25 evidence is strictly construed while that of the opposing party is liberally construed. (Essex Ins. v. 26 Heck (2010) 186 Cal.App.4th 1513, 1522; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125- 27 126; Binder, supra, at 839; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex 28 R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72.) All doubts 2 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 as to whether any material issues of fact exist are to be resolved in favor of the opposing party. 2 (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556; Wiz Technology Inc. v. Coopers & Lybrand 3 LLP (2003) 106 Cal.App.4th 1, 10.) This difference in construing the evidence is necessary "in 4 order to avoid unjustly depriving the plaintiff of a trial." (Brantley v. Pisaro (1996) 42 5 Cal.App.4th 1591, 1601.) 6 The motion must establish a complete defense or otherwise show there is no factual 7 basis for relief on any theory reasonably contemplated by the complaint. (Joslin v. Marin Mun. 8 Water Dist. (1967) 67 Cal.2d 132, 148-149; Canifax v. Hercules Powder Co. (1965) 237 9 Cal.App.2d 44, 50; see also Chevron USA v. Superior Court (1992) 4 Cal.App.4th 544, 548 10 [moving party must show that under no possible hypothesis within the reasonable purview of the 11 allegations of the complaint is there a material question of fact which requires examination by 12 trial].) A party cannot succeed without disproving even those claims on which the opponent 13 would have the burden of proof at trial. (Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 14 127; Miller v. Metzinger (1979) 91 Cal.App.3d 31, 42.) 15 It is not enough for a defendant to show merely that a plaintiff "has no evidence" on 16 a key element of the plaintiff's claim. The defendant must also produce evidence showing that the 17 plaintiff cannot reasonably obtain evidence to support that claim. (Gaggero v. Yura (2003) 108 18 Cal.App.4th 884, 891.) 19 B. Defendant Failed To Meet It’s Burden 20 1. Defendant’s Issue Nos. 1 & 2 21 Defendant maintains Plaintiffs cannot show the standard of care was breached, 22 relying entirely on the Declaration of Brian Bernardy, a Registered Nurse. For the reasons set 23 forth below, Mr. Bernardy’s declaration alone is insufficient to establish that Defendant has met 24 it’s burden of showing Plaintiffs have not, and cannot, establish a triable issue of material fact. 25 (a) Brian Bernady is Not Qualified to Render Expert Opinion on the Standard of Care of All Medical 26 Providers Involved in Mrs. Gilbert’s Course of Treatment 27 Plaintiffs’ First Cause of Action alleges acts and/or omissions by Defendant’s staff 28 who are alleged to be “. . . health care providers licensed in California pursuant to Business & 3 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 Professions Code Sections 200 through 2459" and specifically includes “ . . . physicians, surgeons, 2 and nurses”. [Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material 3 Facts (hereinafter “PUMF”), No. 29.] Plaintiffs’ allegations are not limited to care/treatment that 4 took place in the emergency department. Plaintiffs’ allegations extend to “in patient hospital 5 treatment.” [PUMF No. 30.] 6 Even assuming, arguendo, that Mr. Bernardy is qualified to give expert opinion on 7 the standard of care, that opinion extends to, and is only admissible as to, registered nurses. 8 California Evidence Code §801(b) requires that where a witness is testifying as an expert, his/her 9 testimony in the form of an opinion is limited to matter within his special knowledge, skill, 10 experience, training, and education. Therefore, a registered nurse is not qualified to give expert 11 opinion as to the acts/omissions of physicians/surgeons. Likewise, as to the emergency room 12 physicians/surgeons, California Health & Safety Code §1799.110(c) requires that in any action for 13 damages involving a claim of negligence against a healthcare provider of emergency medical 14 coverage for a general acute care hospital emergency department, the court shall admit expert 15 medical testimony only from physicians and surgeons who have had substantial professional 16 experience within the last five years while assigned to provide emergency medical coverage in a 17 general acute care hospital emergency department. (Health & Safety Code §1799.110(c); see also 18 Stokes v. Baker (2019) 35 Cal.App.5th 946, 966 [§1799.110(c) applies to experts rendering 19 opinions on the standard of care required of an emergency room physician].) This statute applies 20 even where a physician has not been named as a defendant. (Jutzi v. County of Los Angeles 21 (1987) 196 Cal.App.3d 637, 647.) 22 The evidence presented by Defendant in support of it’s motion reflects that at least 23 13 physicians/surgeons were involved during the course of Mrs. Gilbert’s care. Those 24 physicians/surgeons include: James Kuo DO, Glade Roper MD, Ephraim Nsien MD, Bruce Le 25 DO, Gregory Warner MD, Reuben Castillo MD, Steven Carsten DO, Theresa Yuh MD, Dale 26 Yeatts MD, Namrita Bopari MD, Mark Sobers MD, Jesse Menchaca MD, Quynh Dang MD. 27 [PUMF No. 31.] Defendant has presented no declaration from any qualified expert 28 physician/surgeon or a physician/surgeon having substantial professional experience within the last 4 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 five years while assigned to provide emergency medical coverage in a general acute care hospital 2 emergency department. Therefore, Defendant has failed to establish that the physicians/surgeons 3 involved in Mrs. Gilbert’s case, whether they worked in the emergency department or otherwise, 4 met the applicable standard of care. 5 A defendant's expert declaration must be detailed, fully explaining the basis for the 6 opinion and the facts relied upon. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125; Kelley 7 v. Trunk (1998) 66 Cal.App.4th 519, 521, 524—525; Griffith v. County of Los Angeles (1968) 8 267 Cal.App.2d 837, 847.) Mr. Bernardy’s declaration refers to “staff” when giving his ultimate 9 opinions while the basis for his opinions discuss “non-physician staff.” For example, Mr. 10 Bernardy’s declaration states “it is my opinion that the KDMC staff each met the standard of care 11 in all aspects of their respective care and treatment . . .” [at pg. 5, line 28 through page 6, line 1, 12 emphasis added]; “it is my opinion that there was no negligence or misdiagnosis by the KDMC 13 staff in assessing and treating Decedent” [at pg. 6, lines 2-3, emphasis added]; “no act or 14 omission by KDMC staff caused Decedent’s death” [at pg. 7, lines 3-4, emphasis added]. As to 15 the basis for his opinions he states “It is not the responsibility of non-physician staff to assess, 16 diagnose, or order treatment of a patient” [at pg. 6, lines 3-4, emphasis added]; “non-physician 17 staff such as the KDMC staff are not charged with assessing, diagnosing, or creating treatment 18 plans” [at pg. 7, lines 2-3, emphasis added]. 19 Defendant’s Separate Statement of Undisputed Material Facts also draws a 20 distinction between “staff” and “non-physician staff”. Defendant’s Undisputed Material Facts 21 Nos. 6, 12 and 13 claim Mr. Bernardy’s opinions relate to the “non-physician staff” but the cited 22 supporting evidence for those facts does not line up with this contention, rather it refers to “staff” 23 only. Thus, Mr. Bernardy’s declaration is vague and lacks sufficient details. An expert's opinion, 24 even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los 25 Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58.) 26 As Mr. Bernardy, by virtue of being a non-physician, can only be qualified to testify 27 as to non-physician staff, in order for Defendant to meet it’s burden of showing Plaintiff has not 28 and cannot establish a triable issue of material fact, it was necessary for Defendant to either submit 5 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 a declaration specifically and conclusively establishing that it did not employ any 2 physician/surgeons involved in Mrs Gilbert’s case on the day in question or a declaration from a 3 qualified expert(s) attesting to the fact that none of the physicians/surgeons involved in Mrs. 4 Gilbert’s case on the day in question fell below the standard of care. Defendant did neither of 5 these things. 6 Defendant has failed to meet it’s burden. Thus, Plaintiffs need make no showing at 7 all. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) 8 C. Defendant’s Issue No. 3 9 Plaintiffs concede that Laura Miller was not dependent upon Mrs. Gilbert at the 10 time of her passing. 11 IV 12 CONCLUSION 13 Defendant failed to meet it’s burden as to it’s Issue Nos. 1 and 2. Therefore, 14 Plaintiffs need make no showing as to Issue Nos. 1 and 2. As to Issue No. 3, Plaintiffs concede 15 Laura Miller was not dependent upon Mrs. Gilbert at the time of her passing. 16 Dated: April 1, 2021 LAW OFFICES OF EDWARD B. CHATOIAN 17 18 By________________________________ 19 EDWARD B. CHATOIAN II Attorneys for Plaintiff 20 21 22 23 24 25 26 27 28 6 Plaintiffs' Memo of Points & Authorities in Opposition to Defendant Kaweah Delta's Motion for Summary Judgment/Adjudication 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF FRESNO 3 I am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 2607 Fresno Street, Fresno, California 4 93721. 5 On April 1, 2021, I served the within PLAINTIFFS LAURA MILLER, GLENN GILBERT & LANA WHITWORTH’S MEMORANDUM OF POINTS AND 6 AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH DELTA HEALTHCARE DISTRICT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, 7 SUMMARY ADJUDICATION on the interested parties in said action, as listed below: 8 SEE ATTACHED SERVICE LIST. 9 [ ] BY FACSIMILE - I caused such document(s) to be transmitted by facsimile transmission to the number(s) listed above. No error was reported by the machine. 10 [XX] BY U.S. MAIL - By placing the document(s) in a sealed envelope, addressed as provided, 11 and placed for deposit with the U.S. Postal Service in accordance with the firm’s ordinary business practices. I am readily familiar with the firm's practice of collection and 12 processing of documents for mailing. Under that practice, the envelope would be deposited with the United States Postal Service in the ordinary course of business on that 13 same day with postage thereon fully prepaid at Fresno, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date of 14 postage meter date is more than one day after date of deposit for mailing in affidavit. 15 [ ] BY EXPRESS MAIL, FEDERAL EXPRESS OR UNITED PARCEL SERVICE - By placing the document(s) in an approved sealed package requesting overnight delivery, 16 addressed as provided, and placed for deposit with or delivery to an express carrier in accordance with the firm’s ordinary business practices. I am readily familiar with the 17 firm's practice of collection and processing of documents for overnight delivery. Under that practice, the envelope or package would be deposited with or delivered to a service 18 providing for overnight delivery, on that same day, with fees paid or provided for as follows: 1) Deposit in an office, box, chute, facility regularly maintained by an express 19 service carrier for the deposit of express deliveries; or 2) Delivery to a courier or driver authorized by the carrier to receive such documents. 20 [XX] BY ELECTRONIC SERVICE - C.C.P. §1010.6. I caused such document(s) to be 21 transmitted by electronic service to the person named above at the electronic mail addressed listed above. I did not receive any electronic message or indication that the mail 22 was undeliverable. 23 I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing of 24 my own knowledge. 25 Executed on April 1, 2021, at Fresno, California. 26 ___________________________________ 27 LISA J. PROFERA 28 1 SERVICE LIST 2 Mr. Mark B. Canepa Ms. Jennifer M. Mele 3 WHITE | CANEPA LLP 7690 North Palm Ave., Suite 105 4 Fresno, CA 93711 FAX NO. (559) 439-0802 5 mcanepa@whitecanepa.com Represents Fresno Community 6 Mr. Jerry D. Jones 7 STAMMER, McKNIGHT, BARNUM & BAILEY 2540 West Shaw Lane, Suite 110 8 Fresno, CA 93711 FAX NO. (559) 432-2619 9 jerry@smbblaw.com Represents University Faculty Assoc. 10 Mr. Dennis R. Thelen 11 Mr. Kevin E. Thelen LeBEAU THELEN, LLP 12 P. O. Box 12092 Bakersfield, CA 93389-2092 13 FAX NO. (661) 325-1127 dthelen@lebeauthelen.com 14 Represents Valley Hospitalist 15 Mr. Jerry D. Casheros McCORMICK BARSTOW LLP 16 7647 North Fresno Street Fresno, CA 93720 17 FAX NO. (559) 433-2300 jerry.casheros@mccormickbarstow.com 18 Represents Saint Agnes 19 Mr. James C. Schaeffer Ms. Jennifer B. Saccomano 20 SCAHEFFER COTA ROSEN LLP 500 Esplanade Drive, Suite 950 21 Oxnard, CA 93036 FAX NO. (805) 988-9292 22 jschaeffer@scr-legal.com Represents CEP (Vituity) 23 24 25 26 27 28 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF FRESNO 3 I am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is the Law Offices of Edward B. 4 Chatoian, 2607 Fresno Street, Suite C, Fresno, California 93721. My electronic service address is chatoianlaw@sbcglobal.net. 5 On April 1, 2021, I served the within PLAINTIFFS LAURA MILLER, GLENN 6 GILBERT & LANA WHITWORTH’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT KAWEAH DELTA HEALTHCARE 7 DISTRICT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the interested parties in said action, as listed below: 8 Mr. Richard J. Salinas 9 Mr. Justin J. Lee SALINAS LAW GROUP, INC. 10 8405 North Fresno St., Suite 150 Fresno, CA 93720 11 FAX NO. (559) 438-8363 rsalinas@salinaslg.com 12 Represents Kaweah Delta 13 [XX] BY PERSONAL SERVICE - By placing the document(s) in a sealed envelope, addressed as provided, and delivered by personal delivery to the addressee or office of the addressee. 14 I declare under penalty of perjury under the laws of the State of California, that the 15 foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing of my own knowledge. 16 Executed on April 1, 2021, at Fresno, California. 17 ___________________________________ 18 LISA J. PROFERA 19 20 21 22 23 24 25 26 27 28