2016-00202606-CU-MM

Berdine Barteaux vs. Regents of the University of Ca

Nature of Proceeding: Motion for Summary Judgment

Filed By: Samuel, Bianca S.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendants’ 31 Undisputed Material Facts and which of plaintiffs’ 169 Additional Material Facts will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

The court notes that both defendants and plaintiffs filed in connection with this motion a number of the decedent’s medical records, all of which are now viewable by the public via the court’s CCMS system. All counsel are reminded that the court’s new CCMS system allows the public to electronically access and view all pleadings and documents once they are filed unless the court orders otherwise. Thus, it is imperative for counsel to appropriately redact all pleadings and documents before filing. If plaintiffs and/or defendants desire to shield such personal/private medical information from the public’s view, they may promptly file an appropriate motion/application to seal such records and simultaneously lodge (not file) an appropriately redacted version of each paper containing the personal/private medical information sought to be sealed from public access. Counsel are reminded that individual exhibits to a particular document cannot be sealed.

Defendants The UC Regents, et al.’s (collectively “Defendants”) motion for summary judgment is DENIED since plaintiffs have produced evidence sufficient to demonstrate the existence of a triable issue of material fact which precludes summary judgment in favor of Defendants, especially in light of the well-established California law requiring the evidence offered in opposition to be construed liberally while the evidence in support of the motion is construed narrowly.

To the extent Defendants may have intended to seek summary adjudication of issues in the alternative, such motion must also be DENIED because the notice nowhere mentions “summary adjudication” at all and because Defendants not only failed to specify in the notice of motion that such relief was sought in the alternative and but also failed to comply with CRC Rule 3.1350(b), expressly requiring that issues presented for summary adjudication be set forth in the notice of motion and then repeated verbatim in the separate statement.

The court notes that Defendants’ notice of motion states that this motion is brought pursuant to Code of Civil Procedure §2030.290 and §2031.300, both of which relate to discovery motions, rather than Code of Civil Procedure §437c, which governs motions for summary judgment/adjudication.

The court also notes that Defendants’ notice of motion explicitly states that this motion is based at least in part on the “Declaration of Bianca S. Watts” (aka Bianca S. Samuel” but no such declaration was filed in support of this motion.

Defendants failed to comply with CRC Rule 3.1116(c), requiring deposition transcripts cited as evidence be highlighted in some manner that calls attention to the cited testimony.

Both Defendants and plaintiffs failed to comply with CRC Rule 3.1350(g), which requires a single volume of evidence (including all declarations) with a table of

contents when the evidence exceeds 25 pages. For unknown reasons Defendants’ evidence was appended to its separate statement of facts, which does not aid in the court’s review of the evidence and determination of whether there is a triable issue of material fact.

Plaintiffs failed to comply with CRC Rule 3.1350(f)(2), which requires that the separate statement in opposition include for each fact claimed to be disputed, a brief description of the “nature of the dispute” followed by a citation to the supporting evidence. (See, Pl. Resp. to UMF Nos. 19, 23, 25-26, 28-31).

Plaintiffs’ responses to a number of Defendants’ material facts refer to “Plaintiffs’ Separate Statement of Objections” but no such document was filed with the court.

Plaintiffs included in their separate statement a number of additional facts which are not only duplicative of their responses to Defendants’ material facts but also fail to meet CRC Rule 3.1350(a)(2)’s definition of “material facts” (i.e., “facts that could make a difference in the disposition of the motion”) and should therefore not have been included in plaintiffs’ separate statement.

Plaintiffs failed to comply with CRC Rule 3.1110(b)(3).

The parties’ failure to comply with the foregoing procedural requirements caused an unnecessary consumption of finite judicial resources and counsel must therefore be reminded again of the need to comply with all rules governing motions for summary judgment/adjudication so as to facilitate the efficient resolution of these time-consuming motions, a primary reason why these rules have been promulgated. Counsel are further advised that future non-compliant papers may be stricken.

Factual Background

This action arises out of the death of Ms. Haddad who presented to the UC Davis Medical Center’s Emergency Department with complaints of worsening pain. A CT scan with contrast was ordered and afterward, the decedent became short of breath and had other symptoms consistent with an anaphylactic reaction. She then experienced acute respiratory distress and flash pulmonary adema but Defendants’ attempts to remedy the situation were unsuccessful, ultimately ending in Ms. Haddad’s death.

A complaint for wrongful death of Ms. Haddad and negligent infliction of emotional distress (“NIED”) was filed by the decedent’s mother and sister against Defendants.

Defendants now move for summary judgment on the ground that there is no triable issue of material fact with respect to plaintiffs’ causes of action for wrongful death and NIED. More specifically, Defendants contend (1) the wrongful death fails because they complied with the applicable standard of care in the treatment of the decedent, citing Undisputed Material Fact (“UMF”) Nos. 1-19; and (2) the NIED claim fails because (a) there was no negligently-inflicted injury, relying on UMF Nos. 20-28 (which are identical to UMF Nos. 11-19) and (b) plaintiffs had no contemporaneous observation and awareness of an injury-producing event, offering UMF Nos. 29-31. Of particular significance to UMF Nos. 11-19 and 20-28 are the declarations by Drs. Myron Marx and Michael Bresler, which essentially aver that Defendants complied with the applicable standards of care in the treatment of the decedent.

Plaintiffs oppose the motion, contending that several of Defendants’ UMF are “disputed.” The opposition also offers 169 Additional Material Facts (“AMF”) in an attempt to show triable issues of material fact relating to not only Defendants’ substandard medical care which caused or contributed to the decedent’s death but also plaintiffs’ no contemporaneous observation and understanding of the malpractice and resulting injury to their daughter/sister. With respect to the (in)adequacy of Defendants’ care, plaintiffs rely largely on a declaration from Dr. Terrance Baker which asserts that Drs. Schick and Schandera failed to exercise the appropriate degree of care in several respects including the prompt use of an “epi pen,” the attending radiology technician failed to take appropriate steps in response to the decedent’s allergic reaction and the medical center did not have qualified skilled personnel present.

Objections to Evidence

Plaintiff (timely) filed no written objections to evidence in conformity with CRC Rule 3.1354. To the extent plaintiffs’ responses to Defendants’ material facts purport to assert objections to Defendants’ evidence, such objections are overruled because they fail to comply with the express requirements of CRC Rule 3.1354(b) including being stated in a separate document and also quoting the material to which objection is made.

Defendants’ written objections to evidence are overruled because they fail to comply with the express requirements of CRC Rule 3.1354(b)(3), mandating the objections “Quote or set forth the objectionable statement or material” so the court can rule on the admissibility of the evidence at issue.

Analysis

Assuming arguendo the moving papers presented evidence sufficient to satisfy Defendants’ initial burden of production under Code of Civil Procedure §437c(p)(2) and therefore successfully shifted to plaintiffs the burden to present evidence demonstrating the existence of at least one triable issue of material fact, this court holds that plaintiffs have met their burden particularly since California law requires the evidence offered in opposition to be construed liberally while the evidence in support of the motion is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.) In short, because Defendants’ objections to evidence have been overruled, the court may consider to contents of the declaration by plaintiffs’ expert, Dr. Baker, which opines a number of Defendants’ deviations from the applicable standards of care which caused or contributed to the decedent’s death. This expert opinion is plainly sufficient to establish triable issues of material fact relative to the question of whether Defendants did breach the applicable standard of care and whether there was a negligently-inflicted injury which could support plaintiffs’ NIED claim, either of which alone mandates denial of summary judgment in favor of Defendants.

Because Defendants did not actually include in their notice of motion an alternative request for summary adjudication of issues and did not otherwise comply with the CRC Rule 3.1350(b)’s express notice requirements for obtaining summary adjudication of issue, the court need not consider here whether plaintiffs presented evidence sufficient to establish a triable issue of material fact in connection with their alleged

contemporaneous observation and awareness of an injury-producing event.

Conclusion

Because plaintiffs have produced evidence which, when construed liberally, is sufficient to demonstrate triable issues of material fact relating to the questions of whether Defendants committed malpractice and whether there was a negligently-inflicted injury on which an NIED claim could be based, the present motion for summary judgment must be and hereby is denied in its entirety.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)