Case Number: 18STCV00819 Hearing Date: January 22, 2020 Dept: 29

The Motions for Summary Judgment by Defendants Shapour Daniel Golshani, M.D. and Rexford Surgical Institute, Inc. are GRANTED. Code Civ. Proc. § 437c(p)(2).

In the complaint, Plaintiff alleges that Defendants were negligent in providing care and treatment to Plaintiff in connection with a bariatric surgery called a “gastric plication.” The surgery was performed by Defendant Donald James Waldrep, M.D. at Defendant Rexford Surgical Institute, Inc. (“Rexford”). Plaintiff was referred to Dr. Waldrep by Defendant Shapour Daniel Golshani, M.D. Plaintiff asserts claims for negligence against Waldrep, Golshani, and Rexford and claims for battery against Waldrep and Rexford. Defendants Golshani and Rexford move for summary judgment, claiming that the undisputed evidence establishes that their treatment complied with the applicable standard of care and that no negligent act or omission by those defendants caused or contributed to Plaintiff’s injury. Plaintiff filed notices of non-opposition to these motions and no other party has opposed them.

To make out a claim for medical negligence, a plaintiff must establish the following elements: “’(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a 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’s negligence.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. Hanson at 606–607. The element of causation must also be proven with expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

Here, Dr. Golshani presented evidence sufficient to meet his initial burden that he acted within the applicable standard of care in connection with his consultation with and referral of Plaintiff. Dr. Golshani presents the declaration of Stephen D. Bresnick, M.D., a board certified plastic surgeon who is qualified to testify as an expert in this matter. Dr. Bresnick has reviewed the relevant medical records and other relevant documents and opines that Dr. Golshani’s actions complied with the prevailing standard of care at all times. He specifically opined that Dr. Golshani correctly concluded that Plaintiff was not a candidate for liposuction as a weight loss treatment and it was reasonable and within the standard of care for Dr. Golshani to refer Plaintiff to a bariatric surgeon such as Dr. Waldrep for consultation about other weight loss options.

Dr. Bresnick’s declaration is sufficient to shift the burden to Plaintiff to present controverting evidence to raise a triable issue of fact. Plaintiff has not opposed the motion and has not presented any controverting evidence. Dr. Golshani is thus entitled to summary judgment.

Rexford has also presented sufficient evidence to meet its initial burden as to whether Rexford and its staff met the applicable standard of care. Rexford also relies on a declaration from Dr. Bresnick, who reviewed the records relevant to the claim against Rexford. Plaintiff did not object to the declaration of Dr. Bresnick, so the Court considers it here. Dr. Bresnick opines that the care provided by the staff at Rexford Surgical Institute at all times complied with the standard of care that would be expected of at an accredited surgery center. Plaintiff has not provided any controverting evidence to raise a triable issue of fact on this issue.

Rexford has also provided sufficient evidence to meet its initial burden of establishing that it is not vicariously liable for the alleged negligence or battery by Dr. Waldrep. For vicarious liability to be imposed on a defendant, a plaintiff must prove that the negligent actor was an employee or agent of the defendant. Ermoian v. Desert Hospital (2007) 152 Cal. App. 4th 475, 501.

“An agent is one who represents another, called the principal, in dealings with third persons. In California agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when a principal causes a third person to believe another to be his agent, who is not really employed by him. An agent has the authority that the principal, actually or ostensibly, confers upon him.” J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403 (internal citations and quotation marks omitted). Neither type of agency can “ ‘be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency.’ ” Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1133-1134.

The existence of an agency relationship is a question of fact and summary judgment is improper where triable issues of material fact exist as to whether there is an agency. (Universal Bank v. Lawyers Title Ins. Corp. (1997) 62 Cal.App.4th 1062, 1066. “Nonetheless, summary judgment is appropriate where … the evidence is undisputed and susceptible of but a single inference.” Ibid.; accord, Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960.

Here, Rexford’s evidence is sufficient to meet its initial burden to establish that Dr. Waldrep was not an actual employee or agent of Rexford; instead, he was an independent contractor. In addition, Rexford’s evidence is sufficient to meet its burden on ostensible agency. The condition of admission form signed by Plaintiff specifically states that the physicians providing services are independent contractors, not employees or agents of Rexford. See Mejia v. Community Hospital of San Bernardino (2002) 99 Cal. App. 4th 1448, 1454-55 (ostensible agency is negated where the hospital gives actual notice to the patient of the true relationship between the hospital and the physician). Rexford’s evidence is also sufficient to meet the initial burden that it was Dr. Waldrep, not Rexford, who was responsible for obtaining the Plaintiff’s informed consent before performing the procedure. The burden thus shifted to Plaintiff on each of these issues, and Plaintiff has not provided any controverting evidence.

The Court thus GRANTS summary judgment in favor of Defendants Shapour Daniel Golshani, M.D. and Rexford Surgical Institute, Inc. and against Plaintiff Elinr Massachi.

The moving party is ordered to give notice.