Case Number: BC635452 Hearing Date: March 01, 2019 Dept: P

Los Angeles County Superior Court, Dept. P

TENTATIVE RULING

Estate of Roberto Posternak et al. v. Meridian Senior Living, LLC et al., BC635452

March 1, 2019

Defendant Mid Valley Hospice, Inc.’s Motion for Summary Judgment (UNOPPOSED)

Plaintiff Estate of Roberto Posternak alleges defendants negligently failed to recognize and treat decedent’s conditions (scabies infection and fecal contamination). Plaintiff sues for Elder Abuse/Neglect and Medical Negligence. Moving defendant Mid Valley Hospice (MVH), via defendant Damon Raskin, M.D, provided limited hospice services for decedent, primarily caring for a pressure ulcer, while decedent resided at defendant Meridian Senior Living’s facility. Defendant MVH moves for summary judgment. Plaintiff has not filed an opposition.

To obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal. App. 4th 457.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, at p. 467.)

First Cause of Action for Elder Abuse/Neglect

Elder abuse based on neglect consists of “the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code § 15610.57, emphasis added). MVH offers evidence that MVH only provided specialized medical treatment to decedent, caring for the pressure ulcer, not for “hygiene, nutrition, or daily care.” (Separate Stmt., ¶¶7, 9.) MVH presents evidence it did not have a “custodial or care” relationship with decedent; the burden shifts to plaintiff, which provides no contrary evidence. Plaintiff cannot prove an essential element of this cause of action.

Second Cause of Action for Wrongful Death/Medical Negligence

To establish a cause of action for medical negligence “causation must be proven within a reasonable medical probability based on competent expert testimony.” (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.) MVH presents the declaration of expert Karen Josephson, M.D., who opines (a) “there is no indication in the medical records that Mr. Posternak was contaminated with feces,” and (b) “scabies is not known to cause death.” (Josephson Decl., ¶¶ 22, 23.)

Though the First Amended Complaint attributes Mr. Posternak’s death to scabies and/or fecal contamination (FAC at ¶18), plaintiff presents no evidence that (1) the scabies infection led to decedent’s death, (2) decedent had fecal contamination, or (3) that such was a legal cause of death. The evidence MVH presents is sufficient to shift the burden regarding causation to plaintiff. The only evidence before this court is that of Dr. Josephson, who states the medical records do not indicate fecal contamination, and scabies is not a cause of death. As no contrary evidence has been presented, summary judgment is GRANTED.