Re: Rafael Ordaz v. Ogonna Onyeje, et al.
Superior Court Case No. 15CECG03205
Hearing Date: If argument is requested: March 15, 2018 @ 1:30 p.m. (Dept. 402)
Motion: Defendant Fortune’s motion for summary judgment
Tentative Ruling:

To grant. (Code Civ. Proc. §437c.) Defendant Fortune is directed to submit to this Court, within 5 days of service of the order, a proposed judgment consistent with the Court’s summary judgment order.

Explanation:

A motion for summary judgment “shall be granted” where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); see Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 760; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 506.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Id. at p. 853.) Where defendant meets this initial burden, the burden of production then shifts to plaintiff, who must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc. §437c(p)(2); see Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1379.) To establish a triable issue of material fact, the opposing party “must produce substantial responsive evidence[;]” responsive evidence that “gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) In reviewing a grant of summary judgment, the appellate court accepts as undisputed facts those portions of the moving party’s evidence that are not contradicted by the opposing party’s evidence. (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427; see Code Civ. Proc. §437c(c).)

In a medical malpractice action, plaintiff must establish: (1) a duty of the professional to use such skill, prudence, and diligence as other members of that professional commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) Where defendant in a medical malpractice action moves for summary judgment and supports the motion with expert declarations that defendant’s conduct fell within the community standard of care, defendant is entitled to summary judgment unless plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Bushling, supra, 117 Cal.App.4th at p. 509; Kelly v. Trunk (1998) 66 Cal.App.4th 519, 523; see Code Civ. Proc. § 437c(c).)

2

Accordingly, where plaintiff alleges negligence in a medical context, plaintiff must present evidence that defendant breached his or her duty to plaintiff and that the breach caused plaintiff’s injury. (Powell, supra, 151 Cal.App.4th at p. 123.)

A party opposing summary judgment “shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc. §437c(c)(3); see Calif. Rules of Court, rule 3.1350; Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

In the instant action, Defendant meets his initial burden by submitting the declaration of Dr. Bennett Feinberg. Dr. Feinberg’s declaration sets forth the basis on which his opinion is based, reflects a sufficient analysis of the course of treatment received by Plaintiff from Defendant Fortune, and concludes that Defendant Fortune performed within the standard of care at all times in his care and treatment of Plaintiff. Dr. Feinberg’s declaration establishes that Defendant’s conduct fell within the community standard of care, thus entitling Defendant to summary judgment unless Plaintiff provides conflicting expert evidence. (See Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)

Plaintiff does not provide any expert testimony regarding the standard of care. Plaintiff provides his own declaration, in which he states that Defendant intentionally misdiagnosed Plaintiff, and engaged in gross medical neglect; and that Defendant’s referral of Plaintiff for herniorrhaphy was negligent because Defendant had a skin infection at that time, which resulted in post-operative complications. This is insufficient. Plaintiff submits a separate statement of undisputed material facts, however it does not respond to Defendant’s statement of undisputed material facts. Defendant meets his burden, but Plaintiff does not meet his. Accordingly, Defendant is entitled to summary judgment. Defendant Fortune’s motion for summary judgment is granted.

Pursuant to California Rules of Court, rule 3.1312, and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: JYH on 03/12/18
(Judge’s initials) (Date)