Case Number: BC504019 Hearing Date: August 04, 2015 Dept: 92
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CLAUDIO AMAYA,
Plaintiff(s),
vs.

BILLY P. LEON, M.D., et al.,

Defendant(s).

CASE NO.: BC504019

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #
August 4, 2015

1. Background Facts
Plaintiff, Claudio Amaya filed this action against Defendants, Billy P. Leon, M.D., Oscar Tuazon, M.D., Doctor’s Hospital of West Covina, and Universal Industrial Care Medical Center (“Universal”) for medical malpractice.

2. Procedural History of Motion for Summary Judgment
On 3/11/14, the Court heard and granted Defendant, Leon’s motion for summary judgment. The Court found Defendant met his initial burden to show he was not liable for Plaintiff’s damages as a matter of law. Plaintiff, in opposition to the motion, submitted the “medical legal report” of his expert. The Court issued a tentative ruling sustaining Defendant’s evidentiary objections to the report, and therefore granting the motion on the ground that Plaintiff failed to submit evidence to raise a triable issue of material fact. After the tentative ruling was posted, Plaintiff submitted the Declaration of Steven Graboff, Plaintiff’s expert in this case. Plaintiff did so in an attempt to overcome the evidentiary issue discussed in the Court’s tentative ruling.

The Court did not consider the Declaration of Graboff, and granted the motion. Plaintiff moved for reconsideration of the ruling, and the Court denied the motion, finding Plaintiff failed to show new or different facts, law, or circumstances that could not have been presented at the original hearing.

Plaintiff appealed the Court’s order. On 4/09/15, the Court of Appeals issued a remittitur, wherein it reversed and remanded this trial court’s decision. It held that the trial court should have read and considered the Declaration of Graboff, submitted the day before the hearing, and the trial court’s failure to do so was unduly harsh in light of the extreme remedy of summary judgment. The trial court issued a minute order setting this matter for hearing on 7/21/15, and ordered that there be no further briefing.

On 7/21/15, the Court was scheduled to hear the motion for summary judgment. The Court noted that Plaintiff had filed an updated separate statement, which made reference to the updated Declaration of Graboff that was submitted shortly prior to the hearing. Defendant objected to consideration of the updated separate statement, but the Court ruled that it would consider the statement. The Court noted that Defendant had not had an opportunity to respond to the updated Declaration of Graboff, and wished to give Defendant an opportunity to respond. The Court noted that the sole issue before it, at this time, was whether the Declaration of Graboff was sufficient to raise triable issues of material fact concerning Defendant’s care and treatment of Plaintiff.

3. Motion for Summary Judgment
As noted above, the sole issue before the Court at this time is whether the Declaration of Graboff raises triable issues of material fact concerning Defendant’s care and treatment of Plaintiff. The Court previously ruled that Defendant met his initial burden to show he is entitled to judgment as a matter of law, and therefore the burden shifted to Plaintiff to raise a triable issue of material fact.

Defendant objects to the Declaration of Graboff, contending it does not comply with Garribay v. Hemmat (2008) 161 Cal.App.4th 735. In Garribay, the court held that a defendant moving for summary judgment in the medical malpractice context may rely on an expert’s declaration, and the expert may rely on the otherwise hearsay medical records. The records, however, must be authenticated and entered into evidence in order to be considered.

Defendant argues that Dr. Graboff relied on Plaintiff’s medical records from eight different doctors and/or entities. Defendant argues four of those records – the records from Montebello Orthopedic Medical Group, Dr. Cho, Cr. Capen, and Dr. Hafezi – have not been authenticated. Defendant is correct. These records were not submitted with the moving papers or the Declaration of Graboff.

The court’s ruling in Garribay clearly compels this trial court not to consider the Declaration of Graboff, as the records upon which he relied are not authenticated. Garribay failed, however, to provide guidance concerning what should be done when the authenticated records are not submitted with the opposition papers, as opposed to with the moving papers. Denial of a motion for summary judgment due to a procedural defect does not result in irreparable harm to the moving party, who can renew the motion and/or defend the action via non-suit, trial, directed verdict, etc. Granting of a motion for summary judgment due to a procedural defect in the opposition papers, however, deprives the plaintiff permanently of his claim against the defendant. This court is mindful of the court of appeals’s opinion in this very case, wherein it held that the trial court must consider a late-filed declaration that cures a deficiency in the timely filed papers.

The Court is inclined to continue the hearing one additional time to permit Plaintiff to cure the defect discussed above. The hearing is continued from 8/04/15 to 9/11/15 to permit Plaintiff to file authenticated copies of the subject medical records. Plaintiff is ordered to do so on or before 8/28/15, with courtesy copies delivered directly to the courtroom. Assuming Plaintiff properly does so, the motion will be denied. If Defendant believes the submission remains deficient, Defendant must file any brief and/or objections on or before 9/04/15, with a courtesy copy delivered directly to the department.

Dated this 4th day of August, 2015

Hon. Elia Weinbach
Judge of the Superior Court