Case Number: BC489289    Hearing Date: August 04, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JEROME DAVIS,
Plaintiff(s),
vs.
CALIFORNIA CRYOBANK, et al.
Defendant(s).

Case No.: BC489289

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #23
August 4, 2014

Defendants, California Cryobank, Inc. and Cryobank Stem Cell Services, Inc.’s Motion for Summary Judgment is Denied.

1. Allegations of the Complaint
Plaintiff, Jerome Davis filed this action against Defendants, California Cryobank, Inc. and California Cryobank Stem Cell Services, Inc. for damages arising out of Defendants’ alleged mishandling of a sperm specimen. Plaintiff had sperm stored with Defendants for future use. Defendants subsequently released the sperm to Plaintiff’s ex-girlfriend, Deann Kelsey (upon her request); she destroyed the sperm. The complaint originally included causes of action for medical malpractice and fraud, but the fraud cause of action was subsequently dismissed.

2. Motion for Summary Judgment
Defendant moves for summary judgment on the complaint, contending the care and treatment of Plaintiff complied with the standard of care at all times. Defendant supports the motion with the Declaration of Sherron Mills, the founder, president, and chief executive officer of Pacific Reproductive Services, a cryobank located in San Francisco.

3. Issues Presented
The following issues are presented by way of the motion:
• Are the documents upon which Mills relies adequately authenticated;
o If they are not, can the Court consider the authenticating declaration submitted with the reply?
• Is expert testimony necessary in this case?
• Does Defendant meet the initial burden to show Plaintiff’s complaint lacks merit?
• If the initial burden is met, does Plaintiff raise a triable issue of material fact?
• Does the statute of limitations bar the action?

a. Evidentiary Objections
As an initial note, Defendants submitted evidentiary objections to the Declaration of Plaintiff with their reply papers. The objections do not alter the Court’s analysis of the merits of the motion. Objection 2 is sustained; all other objections are overruled.

b. Authentication
Plaintiff correctly notes in opposition that Defendant’s moving papers fail to adequately authenticate the records upon which Defendant’s expert relies. The only authentication comes from Defense Counsel, who lacks personal knowledge of the nature of the documents. Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule and used as a basis for an expert medical opinion. Such records, however, must be properly authenticated. A witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact. Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact. Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 [citations omitted].)

Defendants, in reply, concede that the records were not adequately authenticated. Defendants argue, however, that Plaintiff also relied on the same records in the opposition, and therefore waived any right to object. In the alternative, Defendants provide an authenticating declaration with the reply, and asks that the Court permit Defendants to cure the deficiency. The Court is inclined to consider the records in light of the fact that there does not appear to be a dispute about their authenticity, and in light of the fact that Plaintiff also relies on the records. If Plaintiff wishes to dispute the authenticity of the records, the Court will continue the hearing to permit Plaintiff to file supplemental documents concerning the Declaration of Andrea Stratton, submitted with the reply for the purpose of authenticating the records. The Court finds it is in the interest of justice to consider the motion on its merits at this time.

c. Expert Testimony
The general rule is that expert testimony is necessary to meet the moving burden in a medical malpractice case. The standard of care against which a medical provider’s actions is measured is a matter peculiarly within the knowledge of experts and can only be established by their testimony, unless the conduct called for under the circumstances is within the common knowledge of laypersons. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Except where the common knowledge exception applies, proof of breach of the standard of care by a medical provider requires the testimony of a medical expert, as does proof that such negligence caused the injury. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279.)

“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.)

Defendant argues that a cryobank is a medical provider, and therefore the same rules that apply in other medical malpractice actions also apply in this action. Defendant relies on Johnson v. Superior Court (2002) 101 Cal.App.4th 869 to support this position. The court in Johnson held that a cryobank is a health care provider for purposes of CCP §425.13, and therefore a plaintiff who seeks imposition of punitive damages against the cryobank must first file a motion and meet the standard set forth in §425.13.

In this case, the issue really turns on contract interpretation. The parties’ contract is attached to the moving papers as a part of Exhibit C. Issues of contract interpretation are matters of law for the Court to decide, and are not the proper subject of expert testimony.

Interpretation of a contract consists in ascertaining the meaning to be given to the expression of the parties. (See C.C. 1635 et seq.; Rest.2d, Contracts §200; 5 Corbin (Rev. ed.). Where the language of a contract is clear and not absurd, it will be followed. (C.C. 1638; see Pierce v. Merrill (1900) 128 C. 464, 472, 61 P. 64; Apra v. Aureguy (1961) 55 C.2d 827, 830, 13 C.R. 177, 361 P.2d 897; Estate of Wemyss (1975) 49 C.A.3d 53, 59, 122 C.R. 134, citing the text.) But if the meaning is uncertain, the general rules of interpretation are to be applied. (C.C. 1637; see Burns v. Peters (1936) 5 C.2d 619, 623, 55 P.2d 1182; infra, §744 et seq.; Wachs v. Wachs (1938) 11 C.2d 322, 326, 79 P.2d 1085; Pacific Indem. Co. v. California Elec. Works, Ltd. (1938) 29 C.A.2d 260, 272, 84 P.2d 313; Norton v. Farmers Auto. Inter-Ins. Exchange (1940) 40 C.A.2d 556, 560, 105 P.2d 136.) When a contract is reduced to writing, the parties’ intention is ascertained from the writing alone, if possible, subject to other provisions governing interpretation. (C.C. 1639.)

The trial court’s determination of whether an ambiguity exists in a contract is a question of law, subject to independent review on appeal. The trial court’s resolution of an ambiguity is also a question of law if no parol evidence is admitted or if the parol evidence is not in conflict. However, where the parol evidence is in conflict, the trial court’s resolution of that conflict is a question of fact and must be upheld if supported by substantial evidence. Furthermore, when two equally plausible interpretations of the language of a contract may be made, parol evidence is admissible to aid in interpreting the agreement, thereby presenting a question of fact that precludes summary judgment if the evidence is contradictory. (WYDA Associates v. Merner (1996) 42 C.A.4th 1702, 1710, 50 C.R.2d 323; see Waller v. Truck Ins. Exchange (1995) 11 C.4th 1, 18, 44 C.R.2d 370, 900 P.2d 619, 2 Summary (10th), Insurance, §277 [interpretation of insurance policy is question of law]; Unetco Industries Exchange v. Homestead Ins. Co. (1997) 57 C.A.4th 1459, 1466, 67 C.R.2d 784 [determination as to whether particular matter falls within appraisal clause of insurance policy is question of law].)

d. Initial Burden
The next inquiry is whether Defendants meet their initial burden to establish they are entitled to judgment as a matter of law. The Court’s inquiry in this regard centers on the parties’ contract. The relevant provisions in the contract include the following:
• First paragraph, first page, defining “client” as “Jerome Davis”;
• Second paragraph, first page, “The disposition of Specimens will be determined per the client’s instructions.”
• ¶4, second page, “Upon Client’s written request, Cryobank will ship Specimens to Client or to Client’s designated medical facility via a commercial shipping services.”
• ¶7, third page, “In the event of death of Client, Client instructs Cryobank to dispose of the Specimens by initialing one of the following choices”
o Plaintiff chose “Release Specimens to the Recipient named on the Tissue Release Authorization form (previously Exhibit A)”;
• ¶9, fourth page – makes clear that this agreement is the parties’ entire agreement;
• Exhibit A – Tissue Release Authorization – has three options – Plaintiff can choose not to designate a recipient, to designate a recipient as his sexually intimate partner, or to authorize Defendants to release specimens to a designated recipient. Plaintiff chose option two, and listed Deann Kelsey as his sexually-intimate partner.

All of the foregoing is consistent with Plaintiff’s interpretation of the parties’ agreement – that the sperm was only to be released to Deann Kelsey upon Plaintiff’s death, and she was not otherwise authorized to request release of the sperm. Because Plaintiff’s interpretation of the agreement is a reasonable reading of the parties’ agreement, the Court finds Defendants failed to meet their initial burden to show that they are entitled to judgment as a matter of law.

e. Statute of Limitations
Defendants’ alternative argument is that they are entitled to judgment as a matter of law because the statute of limitations bars this action. Defendants contend Plaintiff knew, as of March of 2011, that his samples had been released. Defendants contend Plaintiff did not file his notice of intent to sue until 4/30/12, which is more than a year after acquiring such knowledge, and therefore the action is barred by CCP §340.5.

Plaintiff, in opposition, establishes that the last of his sperm was not mailed to Kelsy until May of 2011. Indeed, Defendants’ own moving papers concede as much – per undisputed fact 10, Kelsy picked up the last samples on 5/17/11, less than a year before Plaintiff served the notice of intent to sue. Plaintiff was not harmed until the last of his sperm was given to Kelsy – up until that point, there was still sperm for him to obtain for use at a future date. Per Davies v. Krasna (1975) 14 Cal.3d 502, 513, a cause of action does not accrue until the plaintiff suffers actual and appreciable harm. A reasonable juror could determine that Plaintiff did not suffer actual and appreciable harm at the time the first samples were given to Kelsy, as Plaintiff still had additional samples he could use in the future if he so desired.

The motion for summary judgment on the ground that the statute of limitations bars the action is therefore also denied.

Dated this 4th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court