Filed 4/21/20 Brooks v. Cedars Sinai Medical Center CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

IAN W. BROOKS,

Plaintiff and Appellant,

v.

CEDARS SINAI MEDICAL CENTER et al.,

Defendants and Respondents. B295540

(Los Angeles County

Super. Ct. No. BC575125)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lawrence Cho, Judge. Affirmed.

Balisok & Associates, Inc., Russell S. Balisok; Law Office of Denise A. Platt and Denise Platt Maginn for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch, John J. Weber and Kristi K. Hedrick for Defendants and Respondents.

_________________________

Ian W. Brooks (Brooks) appeals the summary judgment entered in favor of respondents Cedars Sinai Medical Center (Cedars) and Cedars Sinai Medical Care Foundation (Foundation). We affirm.

FACTS

Operative Complaint

Brooks filed the Fourth Amended Complaint (FAC), in part, as the successor in interest to his mother Tedda Wolin (Wolin) and alleged causes of action against Cedars and Foundation for fraud, constructive fraud, unfair competition (Bus. & Prof. Code, § 17200 et seq.), recklessness, elder abuse and violation of Health and Safety Code section 1430, subdivision (b). On his own behalf, Brooks asserted a cause of action for wrongful death.

The FAC alleged that Cedars, Foundation and others formed a joint venture designed to maximize profits and violate state and federal laws at the expense of their patients. They failed to disclose their conflicts of interest to Brooks and Wolin. The joint venture’s policies led Cedars and Foundation to provide Wolin with inadequate care for her heart condition, which ultimately led to her death.

Cedar’s Motion for Summary Judgment or Adjudication

Cedars moved for summary judgment or, in the alternative, summary adjudication on the grounds, inter alia, that it met the standard of care and did not cause Wolin’s death. It relied on the expert declarations of Dr. Karen Josephson and Dr. Daniel Wohlgelernter.

Dr. Josephson declared that she reviewed Wolin’s medical records from Cedars, Rehabilitation Centre and UCLA as well as the FAC and Wolin’s death certificate. Also, she reviewed the deposition transcripts of Brooks, Dr. Michelle Kittleson, Dr. John Kea, and Dr. Bradley Rosen. Dr. Josephson summarized the facts as follows. “Prior to her May 24, 2013[,] admission to [Cedars], [Wolin] had an extensive history of ischemic cardiomyopathy . . . complicated by recurrent ventricular tachycardia and atrial fibrillation. She was on chronic anticoagulation, with a notable history of ventricular tachyarrhythmia, myocardial infarction, cerebrovascular accident (2010), coronary artery disease and the potential for lethal arrhythmias. . . . Given her extensive cardiac issues[,] [Wolin] was followed by numerous specialists including but not limited to [Dr. Kittleson].”

Wolin went to the emergency department at Cedars on May 24, 2013, with complaints of shortness of breath. She was diagnosed with congestive heart failure, NYHA class III, ischemic cardiomyopathy, atrial fibrillation and hyperbilirubinemia and was admitted. On June 4, 2013, she reported that she felt better. She could stand and walk with a front wheeled walker. She denied chest pain, palpitations and shortness of breath. Her blood pressure and heart rate were improved. She declined a physical therapy reassessment. Cedars determined she was medically stable for discharge. The following day, June 5, 2013, a nurse documented that Wolin was prepared for discharge to Rehabilitation Centre, and that after talking to a doctor, Wolin agreed to go to a skilled nursing facility for a short-term rehabilitation “then discharge to home with [Brooks] and IHSS provider 4 x/week.” Wolin’s condition at the time of discharge was stable.

She arrived at Rehabilitation Centre on June 5, 2013. Dr. Kea issued various orders the first few days and evaluated Wolin on June 8, 2013. “On June 11, 2013, [Wolin] was evaluated by Nurse Practitioner Olga Slavinskaya [(Slavinskaya)] who likewise confirmed that [Wolin] was alert and oriented x 4. [Wolin] denied complaints and was participating in therapy.” The next day, Wolin had edema in both of her feet, and they were swollen. Dr. Kittleson issued an order for Lasix. Early on June 13, 2013, Wolin had an abnormal lab result of elevated B-Type Natriuretic Peptide. Dr. Kea ordered “Lasix 80 mg po x 1.”

Brooks got to the facility at 2:50 a.m. and refused the Lasix for Wolin. He asked that Wolin be transferred back to Cedars. At 2:55 a.m., staff called the on-call doctor and left a message with his urgent voice mail regarding Brooks’s refusal of Lasix and his request to transfer Wolin back to Cedars. At 3:10 a.m., the on-call doctor issued a telephone order for Wolin to be transferred to Cedars for “evaluation of tachycardia and bradycardia.” At 3:22 a.m., the paramedics arrived and took Wolin to Cedars.

At Cedars, Wolin was started on Lidocaine and Dr. Kittleson was called. Wolin was admitted to the Critical Care Unit. Doctors at Cedars evaluated and treated Wolin. Also, Brooks brought in a doctor Wolin had previously seen for an outpatient consultation. The doctor brought in by Brooks “noted that [Wolin] should be explored for an ischemic substrate[;] however[,] he understood that [Wolin] was unwilling to consider angiography. Her long term outlook was not favorable.”

On June 14, 2013, another consulting doctor confirmed that Wolin and her family elected to pursue a conservative management strategy. On June 18, 2013, Wolin finally agreed to an angiography. But before the exam could be done, she suffered a transient ischemic attack. She died on June 22, 2013, when her heart stopped.

“The Death Certificate lists the cause of death as cardiac arrest due to congestive heart failure exacerbation, sepsis and pneumonia. Contributing causes of death included atrial fibrillation, atrial flutter, ventricular tachycardia and pulmonary fibrosis.”

Dr. Josephson declared: “[T]he care and treatment rendered to [Wolin] at Cedars during both admissions was within the standard of care in the community at all times. The voluminous medical records of [Wolin] elucidate an elderly woman in end stage heart failure plagued by complications and coupled with interstitial lung disease. These were advanced and progressive life threatening conditions resulting in multiple exacerbations of congestive heart failure and arrhythmias. . . . The only true option was medical management and, despite optimal medical management afforded by a team of healthcare providers, her inevitable decline could not be prevented.” Further, Wolin’s discharge to Rehabilitation Centre “was appropriate as there was no further acute care that she required at the time.” Dr. Josephson stated, “It is my opinion to a reasonable degree of medical probability that no act or omission to act on the part of Cedars or its staff caused, contributed [to], or was a substantial factor in the death of” Wolin.

Dr. Wohlgelernter reached the same conclusions.

Foundation’s Motion for Summary Judgment or Adjudication.

Foundation moved for summary judgment or, in the alternative, summary adjudication. It argued that Slavinskaya met the standard of care and did not cause Wolin’s death. The motion was based, in part, on opinions by the same experts used by Cedars.

Dr. Josephson opined that the care rendered by Slavinskaya was within the standard of care because her “assessment was timely and appropriate,” and because she did nothing to impede Wolin’s readmission to Cedars. Further, Dr. Josephson opined that “to a reasonable degree of medical probability,” no act or omission to act on the part of Slavinskaya “caused, contributed [to], or was a substantial factor in the death of [Wolin].” Dr. Wohlgelernter offered the same opinions.

Opposition Papers Filed by Brooks

In opposition to the motions by Cedars and Foundation, Brooks offered similar argument.

Brooks claimed that Cedars and Foundation “purportedly lodged medical records of Wolin’s care and treatment at Cedars and [Rehabilitation Centre], as well as other facilities.” He then argued that the medical records lacked foundation and referred to his evidentiary objections. In his evidentiary objections, he asserted that the medical records from Cedars and Rehabilitation Centre had insufficient foundation and were hearsay. Further, he argued that the expert declarations should be rejected to the degree they relied on the medical records.

In his points and authorities, Brooks argued the business records exception in Evidence Code section 1271 was not applicable because “there is no averment that the proffered records were made in the regular course of business, no evidence that the writings were each made at or near the time of the act, condition or event, no custodian or other qualified witness has testified as to a description of the records and the mode of preparation of the records.”

Brooks offered the expert declaration of Dr. Banerjee. Dr. Banerjee, however, offered no opinion regarding Cedars or Foundation. He merely opined that the conduct of Rehabilitation Centre fell below the standard of care and contributed to Wolin’s death.

With respect to Foundation, Brooks argued that Slavinskaya never saw Wolin. Brooks, however, did not identify any person working for Foundation who provided Wolin with inadequate care. Rather, he argued there were “inherent questions of fact . . . as to Wolin’s condition and whether care or treatment was provided, [whether] the care and treatment provided was within the standard of care, and as to Wolin’s cause of death and injury.”

The Replies

In its reply, Foundation argued that Slavinskaya evaluated Wolin on June 11, 2013, and that the medical records were admissible under Evidence Code section 1271. In a separately filed response to Brooks’s evidentiary objections, Foundation stated that the medical records had been certified by the custodians of records. Foundation offered an excerpt from the deposition of Kelley Hart (Hart) in which she identified Slavinskaya’s work schedule. In addition, Foundation offered a June 11, 2013, progress note for Wolin that was signed by Slavinskaya.

Cedars argued that Brooks’s claims did not have any merit. It noted that the medical records were admissible under Evidence Code section 1271.

Ruling on Evidentiary Objections; Orders Granting Summary Judgment; Judgment

The parties appeared on December 6, 2018, to argue Foundation’s motion for summary judgment/adjudication. The trial court granted summary judgment from the bench but did not mention the evidentiary objections. In its written ruling, the trial court stated that “the evidence that [Foundation] providers were non-negligent and did not cause harm is unrebutted and defeats the key causation element in [Brooks’s] causes of action 1, 2, 3, 4, 5 & 7.” Brooks did not rebut the declarations of Dr. Josephson and Dr. Wohlgelernter. “Summary judgment is therefore [granted].”

On December 11, 2018, the trial court held a hearing on Cedars’ motion for summary judgment/adjudication. Brooks’s counsel asked for rulings on the evidentiary objections. The trial court replied, “The rulings will be the same as the prior hearing.” The trial court granted summary judgment and issued a written ruling stating that Brooks did not offer any evidence to rebut the expert opinions of Dr. Josephson and Dr. Wohlgelernter.

This appeal followed.

DISCUSSION

Brooks seeks reversal on the following grounds: (1) the motions for summary judgment were based on inadmissible medical records; (2) there is a triable issue as to whether Slavinskaya ever saw Wolin; (3) there is a triable issue as to whether Foundation and Cedars provided Wolin with adequate care; and (4) the unfair competition cause of action must survive because the FAC alleges that they violated both state and federal law. We turn to these issues below.

I. Standard of Review.

We independently assess the “‘correctness of the trial court’s [summary judgment] ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material facts or whether the moving party is entitled to judgment as a matter of law.’ [Citation.]” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1403.) “The pleadings define the issues to be considered on a motion for summary judgment.” (Ibid.) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A trial court can consider new evidence submitted with a reply brief if “‘the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.’ [Citation.]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1183.)

Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid) left open the question as to whether a trial court’s ruling on objections to evidence supporting or opposing a summary judgment motion are reviewed de novo or for an abuse of discretion. Case law is split on this issue. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 [“According to the weight of authority, appellate courts ‘review the trial court’s evidentiary rulings on summary judgment for abuse of discretion”]; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451 [“we interpret Reid’s practical effect on review of a summary judgment, in which evidentiary issues, and all issues, are decided on papers alone, to be the application of de novo review”].) Based on the weight of authority, we conclude that the trial court’s evidentiary rules are reviewed for an abuse of discretion.

A reviewing court should not disturb a trial court’s exercise of discretion unless it appears that there has been a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Discretion is abused only when the trial court exceeds the bounds of reason. (Ibid.)

II. Medical Records.

The trial court ruled on the evidentiary objections. Though the nature of its ruling is not express because it adopted a prior, unspecified ruling, the only possible inference is that it overruled Brooks’s objections to the medical records given that it granted summary judgment.

The medical records were supported by declarations from custodians of records. The question is whether they satisfied Evidence Code section 1271 such that the records fell within the business records exception. This is relevant because if the medical records were not admissible, Dr. Josephson’s and Dr. Wohlgelernter’s opinions lacked foundation and the trial court’s rulings were in error. But if their opinions were admissible, then there are no triable issues. We conclude, as explained below, that the records were admissible.

A. The Relevant Statutes.

Evidence Code section 1271 provides that evidence of a business record is not made inadmissible by the hearsay rule when offered to prove an act, condition or event if the writing was made in the regular course of business at or near the time of the act, condition or event; the custodian or other qualified witness testifies to its identity and the mode of its preparation; and the sources of information and method and time of preparation were such as to indicate its trustworthiness.

When documents are produced in response to a subpoena, Evidence Code section 1561 sets forth the requirements for the accompanying affidavit. Evidence Code section 1562 provides, “If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true.”

B. Taggart.

In Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1707 (Taggart), the court held that a declaration that satisfied former Evidence Code section 1561—which applied to documents produced in response to a subpoena duces tecum—did not satisfy Evidence Code section 1271. At the time, Evidence Code section 1561 could be satisfied by an affidavit stating that the affiant is an authorized custodian of records and has authority to certify the records; the copy is a true copy of all the records described in the subpoena; and the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. (Taggart, supra, 33 Cal.App.4th at p. 1705.)

In response to Taggart, the Legislature amended Evidence Code section 1561 to add subdivisions (a)(4) and (a)(5) to require the affiant to also state “[t]he identity of the records” and a “description of the mode of preparation of the records.” (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044–1045.) The amendment was designed to “‘ensure that such [nonparty business] records may continue to be admissible without requiring their authenticity to be proved through live testimony from the custodian of records or other qualified witness.’ [Citation.]” (Id. at p. 1045.)

C. The Declarations.

Monique Bolton (Bolton) of Cedars declared she is the duly authorized custodian of records or other qualified witness. Her declaration stated “[t]his is a complete copy of the medical record [¶] Date of Service 6/27/2011 — 6/22/2013,” “[t]he records were prepared by the personnel of the business in the ordinary course of business at the time of the act[,] condition or event,” and “[t]he copy is a true copy of all the records described in the Subpoena or authorization[.]”

The second declaration was signed by Adriana Barba (Barba) from Rehabilitation Centre, and by Me Quinn (Quinn). The declaration form was provided by Ronsin Litigation Support Services (Ronsin). Barba declared that she was the duly authorized custodian of records. She also declared, “The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. I testify to its identity and the mode of its preparation; and the sources of information and method [and] time of preparation were such as to indicate its trustworthiness. The copy is a true copy of all the documents requested,” which were medical and billing. Quinn declared: “I am the attorney or the attorney’s representative and I state that I made true copies of all the original records delivered to me by the Custodian of Records” of Rehabilitation Centre. Below Quinn’s declaration is the following statement: “Pursuant to Business and Professions Code Section 22462, I will maintain the integrity and confidentiality of information obtained under the applicable code and distribute the records copied by RONSIN to the authorized person or entities.” Robert D. Alkema (Alkema) signed on behalf of Ronsin.

D. Analysis.

Though the declarations from the custodians contain minimal information, we conclude that it did not constitute a miscarriage of justice for the trial court to conclude that they satisfied Evidence Code section 1561 as well as Evidence Code sections 1562 and 1271. It appears that Brooks’s objections raised technical concerns, not substantive concerns. We note that Brooks’s own expert, Dr. Banerjee, relied on the medical records from Cedars and Rehabilitation Centre when forming his opinion about Rehabilitation Centre. It was Dr. Banerjee’s declaration—which was offered in opposition to the motions by Cedars and Foundation—that resulted in the denial of Rehabilitation Centre’s motion for summary judgment. The trial court was certainly aware that Brooks was relying on an expert declaration who viewed the same records as Dr. Josephson and Dr. Wohlgelernter. On top of the preceding, Brooks has not explained why the presumption in Evidence Code section 1562 is not sufficient to establish the truth of the statements made by Bolton and Barba.

We address Brooks’s specific arguments below.

1. The Bolton Declaration.

Per Brooks, Bolton’s declaration failed to offer evidence of the identity of the documents produced. But Bolton identified them as a complete copy of Wolin’s medical records for “Date of Service 6/27/2011 — 6/22/2013.” Also, she declared that the copy is a true copy of all the records described in the subpoena or medical authorization. It was reasonable for the trial court to conclude that Bolton had sufficiently identified the documents by reference to the dates of service as well as the subpoena or medical authorization, either of which could be cross-checked by Brooks. Not to be forgotten, there is no dispute that Cedars and Foundation lodged copies of the medical records with the trial court. Thus, the trial court had the opportunity to check the medical records itself. Also, Dr. Banerjee reviewed all the records himself, so this was a case in which the records were reviewed by experts on both sides.

Brooks claims there was “no evidence of how [the medical records] were prepared, and no evidence that the [medical records] were trustworthy.” But Bolton declared that the medical records were prepared by the personnel of the business in the ordinary course of business at the time of the act, condition or event. The trial court could consult the medical records to see whether they were printouts from a computer, typed or handwritten. Certainly Dr. Banerjee would have raised concerns if he thought there was something amiss with the records. Instead, Dr. Banerjee relied on the records when forming his opinions. It was within the bounds of reason for the trial court to conclude that Bolton sufficiently established how the medical records were prepared and that the timing of the preparation made them trustworthy.

2. The Barba Declaration.

Brooks claims the custodian of record declaration for Rehabilitation Centre is improper because it was signed by Alkema, an employee of Ronsin, and not by an employee of Rehabilitation Centre. We reject this argument because it was Barba, an authorized custodian of records, not Alkema, who certified the documents copied.

Next, Brooks argues that Barba did not state that the copy of the records is a true copy of all records described in the subpoena. But she declared they were true copies of the medical and billing records requested in the “subpoena duces tecum/ deposition subpoena.” The trial court did not abuse its discretion in determining that this was sufficient to identify the records copied. It is reasonable to assume the records could be identified by cross-checking Brooks’s corresponding request for records from Rehabilitation Centre and therefore the identity of the records was not in doubt. And, as we have stated, this is a case in which the medical records were examined by the experts from both sides.

Brooks then suggests that there is no basis to conclude that Barba knew that the records were prepared by Rehabilitation Centre’s personnel. Presumably this argument is premised on the idea that Alkema rather than Barba certified the records copied. Because the premise is false, there is no call for us to analyze the issue further.

Brooks posits that Barba failed to describe the mode of preparation. But she declared that the medical records and billing records were prepared in the ordinary course of business. The trial court ruled within the bounds of reason by accepting this as a description of the mode of preparation of medical records and billing records, particularly because it had all the medical records before it, and because those records were relied upon by the experts on both sides.

Last, Brooks asserts that there was no evidence that the records were trustworthy. The trial court, however, was well within its discretion to determine that if they were prepared in the ordinary course of business at the time of the act, condition or event, and that if they were relied upon by experts on both sides, then they were sufficiently trustworthy under Evidence Code section 1271 to be admissible.

III. Slavinskaya.

In its motion, Foundation claimed that Slavinskaya acted within the standard of care. Jill Martin, the senior vice-president and chief operating officer of the Cedars-Sinai Medical Network, declared that Slavinskaya was employed as a nurse practitioner at the time of the events giving rise to the lawsuit. Exhibit B to Foundation’s reply brief was a document that contained physician progress notes for Wolin from June 11, 2013. That document was signed “Olga Slavinskaya.” Dr. Josephson declared, “On June 11, 2013, [Wolin] was evaluated by Nurse Practitioner [Slavinskaya]” and that the care Slavinskaya rendered to Wolin was within the standard of care. Dr. Wohlgelernter opined the same in his declaration.

Brooks contends that he offered evidence to show that Slavinskaya did not see Wolin, and that Foundation’s evidence was fabricated.

Brooks adverts to Barba’s declaration as a custodian of records for Rehabilitation Centre and to the resume of Dr. Banerjee. Neither document offers insight into whether Slavinskaya saw Wolin. Presumably, Brooks wants us to review the declaration of Russell S. Balisok (Balisok), Brooks’s trial attorney.

Balisok declared that he deposed Hart and stated, “[Hart] produced records showing the attendance of Cedars Nurse Practitioners such as [Slavinskaya] when they provide[d] care to Cedars’ . . . patients at [Rehabilitation Centre]. See Exhibit ‘3’ to the Hart Deposition transcript. A review of the Exhibit 3 schedule revealed that [Slavinskaya] did not appear in [Rehabilitation Centre’s] facility during the . . . 8 days of [Wolin’s] residence there. [Hart] produced records showing the attendance of caregivers of [Rehabilitation Centre] and testified clearly that Exhibit 3 to her deposition transcript[] did not reflect any visit by [Slavinskaya] to [Rehabilitation Centre] during the period from March to September 2013.”

This is not evidence; it is argument masquerading as evidence. When attorneys use their declarations to make arguments, it “makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)

We easily conclude that Balisok’s declaration did not establish a triable issue of fact as to whether Slavinskaya saw Wolin on June 11, 2013.

Attacking from a different angle, Brooks argues that the June 11, 2013, chart that indicates that it was signed by Slavinskaya was inadmissible. But he does not indicate that he objected to the chart. (Code Civ. Proc., § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived”].) Nor does he argue that he was deprived of notice and an opportunity to respond. We conclude that the trial court could consider the chart.

IV. No Triable Issue as to Whether Foundation or Cedars Caused Harm to Wolin or Brooks.

As to all causes of action, the trial court ruled that there was no triable issue as to whether Foundation or Cedars caused Wolin any harm because their expert declarations established that they met the standard of care and did not cause Wolin’s death.

Brooks contends that the trial court erred because his evidentiary objections to the medical records which Dr. Josephson and Dr. Wohlgelernter relied on should have been sustained. But, as we have explained, Brooks’s objections were properly overruled. Therefore, there is no triable issue as to Foundation or Cedars causing Wolin or Brooks harm.

Brooks states, “Denial of [health care] is evident in Dr. Banerjee’s declaration” and “[Wolin] was denied acute care at [Cedars] when she was transferred to [Rehabilitation Centre] because that nursing facility was not equipped to provide her with needed care. In addition, when readmitted from [Rehabilitation Centre] to [Cedars][,] she was denied cardiac catheterization on the pretext of her coagulopathy.” But Dr. Banerjee never declared that Foundation or Cedars fell below the standard of care or in any way contributed to the death of Wolin. We conclude that Dr. Banerjee’s declaration does not create a triable issue. (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 695 [expert medical opinion is required to prove that a defendant did not meet the standard of care unless the conduct required was within the common knowledge of laymen].)

To establish that any of the causes of action is viable, Brooks must demonstrate a triable issue with respect to some other matter. Only as to unfair competition does he suggest an independent basis for finding a triable issue.

V. Unfair Competition.

Brooks contends that the motion for summary judgment should have been denied because the third cause of action for unfair competition alleged that Foundation and Cedars violated California Code of Regulations, title 22, section 72301 and 42 Code of Federal Regulations part 483.10(d)(1) by assigning Dr. Kea to be Wolin’s attending physician at Rehabilitation Centre, and by denying her the right to a physician of her choice. Brooks fails to cite and apply any law establishing that the unfair competition cause of action should survive even if neither Foundation nor Cedars caused Wolin harm. When an appellant asserts a point “but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)

VI. Arguments in Brooks’s Reply Brief.

In the reply, Brooks argues: (1) that Cedars and Foundation mischaracterize the FAC and ignore the allegations that they entered a joint venture to deny readmission and illegally assign a Cedars’ physician to Wolin; and (2) Cedars and Foundation committed fraud or constructive fraud based on their fiduciary duty to Wolin arising from a deemed fiduciary relationship between providers and a patient, and based on an in fact confidential relationship. These issues were not raised and argued in the opening brief. “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755, fn. 1.)

All other issues are moot.

DISPOSITION

The judgment is affirmed. Foundation and Cedars shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

______________________, J. _____________________, J.

CHAVEZ HOFFSTADT