Case Number: 19STCV03600 Hearing Date: January 22, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

AUDREY GARNER, ET AL.,

Plaintiff(s),

vs.

IAN A. LEVIN, M.D., ET AL.,

Defendant(s).

CASE NO: 19STCV03600

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

January 22, 2020

1. Background Facts

Plaintiffs, Audry And Andrew Garner filed this action against Defendants, Ian A. Levin, M.D., Henry Mayo Newhall Memorial Hospital, and Sheila R. Veloz Breast Center for medical malpractice and loss of consortium.

2. Motion for Summary Judgment

a. Moving Argument

At this time, the Hospital and Breast Center move for summary judgment, contending they complied with the standard of care at all times. Defendants support their motion with the expert declaration of Pulin Sheth, M.D. Dr. Sheth sets forth his expert credentials, states what records he reviewed, detail Defendants’ care and treatment of Plaintiff, and ultimately conclude that Defendants’ care and treatment of Plaintiff complied with the standard of care at all times.

b. Standard of Care

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

c. Moving Burden

The Expert Declaration of Dr. Sheth is sufficient to meet Defendants’ moving burden to establish they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard.

d. Opposing Burden

Any opposition to the motion was due on or before 1/08/20. The Court has not received any opposition to the motion. On the contrary, on 1/08/20, Plaintiffs filed a notice of non-opposition to the motion. Plaintiffs therefore necessarily failed to meet the shifted burden, and the motion is granted.

e. Notice

Moving Defendants are ordered to give notice.