Case Number: LC097447    Hearing Date: July 24, 2014    Dept: 92

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

OSCAR DE LA ROSA, ET AL.,
Plaintiff(s),
vs.

SIERRA MOUNTAIN MEDICAL CORPORATION, ET AL.,

Defendant(s).

CASE NO: LC097447

[TENTATIVE] ORDER DENYING PLAINTIFFS’ MOTION FOR NEW TRIAL

Dept. 92
1:30 p.m. — #38
July 24, 2014

Plaintiff Oscar De La Rosa’s Motion for New Trial is DENIED. Plaintiff’s request for judicial notice is granted.

1. Background Facts
Plaintiffs, Oscar de la Rosa and Roberta Solano Morales, the parents and surviving heirs of David Damian de la Rosa, filed this action against Defendants, Sierra Mountain Medical Corporation, Valley Presbyterian Hospital, and Daniel Rose, M.D. for medical malpractice/wrongful death arising out of the death of their son.
On 6/5/14, the Court granted Defendant Sierra Mountain Medical Corporation and Defendant Daniel Rose, MD’s motions for summary judgment due to a procedural defect found in Plaintiff’s expert witness, Dr. Joel Sarachek, MD’s, declaration and due to a substantive failure to provide facts to show a triable issue of material fact as to causation.
2. Motion for New Trial

Plaintiff moves for a new trial, contending the Court’s evidentiary rulings regarding the medical records was erroneous and an abuse of discretion. The notice of intent to move for new trial lists three subdivisions of §657 as support, but the points and authorities attached to the motion solely cite CCP §657(1) and (7).

CCP §657(1) provides for a new trial whenever there exists “Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.”
A new trial under §657(1) has been granted on the grounds that counsel for an adverse party suggested to the jury that there had been collusion between the plaintiff and defendant. [Price v. Giles, 196 Cal. App. 3d 1469 (2d Dist. 1987)] The granting of a new trial has also been upheld based on the plaintiff’s failure to join a necessary party. [Abbot Kinney Co. v. City of Los Angeles, 53 Cal. 2d 52 (1959) (new trial was originally granted on grounds of errors in law and insufficiency of evidence, but these issues were not reached on review)]

New trials have been ordered based on improper actions or rulings of trial judges, including:
(1) Refusal to allow amendment of a party’s answer to set up affirmative defenses [Fairfield v. Hamilton, 206 Cal. App. 2d 594 (2d Dist. 1962)];
(2) Improper denial of a request for a jury trial [Medeiros v. Medeiros, 177 Cal. App. 2d 69 (3d Dist. 1960)];
(3) Improper denial of a continuance [Henderson v. Drake, 118 Cal. App. 2d 777 (1st Dist. 1953)];
(4) Erroneous or misleading jury instructions [Bristow v. Ferguson, 121 Cal. App. 3d 823 (3d Dist. 1981)]; and
(5) Improper refusal to give an instruction [Gonsalves v. Petaluma Bldg. Materials Co., 181 Cal. App. 2d 320(1st Dist. 1960)].

Irregularities in the verdict or findings have also been found to support a motion for a new trial under §657(1). New trials have been granted where the verdict was ambiguous as to whether the award included punitive damages or was merely an overaward of compensatory damages [Pelletier v. Eisenberg, 177 Cal. App. 3d 558 (4th Dist. 1986)]; and where verdicts on separate claims were inconsistent. [Manor Investment Co v. F.W. Woolworth Co., 159 Cal. App. 3d 586 (1st Dist. 1984) (disapproved of on other grounds by, Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994)) (one verdict found in favor of one defendant, while another verdict held all defendants liable for conspiracy)].

The Court finds Plaintiff failed to establish that §657(1) applies, or that any of the types of errors discussed above (procedural errors) occurred in connection with the hearing on the motions for summary judgment.

CCP §657(7) provides for a new trial whenever there exists an “error in law, occurring at the trial and excepted by the party making the application”.

New trials have been ordered based on errors in law, including: (1) erroneous order granting summary judgment. Collins v. Sutter Mem. Hosp., (2011) 196 Cal App 4th 1, 22 and (2) erroneous evidentiary rulings (admitting or excluding evidence). Richard v. Scott (1978) 79 Cal App 3d 57, 63.
Plaintiff’s argues that the Court misinterpreted the causation requirement for medical malpractice by distinguishing between “likely” and “a reasonable medical probability”. Plaintiff’s citation to Espinosa v. Little Co. of Mary Hosp., (1995) 31 Cal App 4th 1304, 1316–1321 is distinguishable herein because the case involved three negligent acts by different defendants that contributed to the medical injuries. The case held that the plaintiff’s burden of proof as to causation was fulfilled when it showed that each defendant was a substantial factor in bring about the damages. This is not a case wherein multiple defendants caused Plaintiff’s injuries/death. This action involves the failure to properly diagnose a medical condition (ie: anoxic encephalopathy, status post cardiopulmonary arrest due to influence A subtype H3 pneumonia and other undetermined factors; See Defendant’s declaration of Dr. David Lang, ¶22) Plaintiff was brought into Defendant’s urgent care and the medical staff therein failed to diagnose Plaintiff’s condition. Herein, Plaintiff’s injuries/death are alleged to have been based upon “concurrent causes” (ie: the existing illness or condition and alleged medical malpractice (e.g., physician’s failure to properly diagnose or treat the condition). When the medical malpractice is based upon “concurrent causes”, the malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. Simmons v. West Covina Med. Clinic (1989) 212 Cal App 3d 696, 702. Herein, Plaintiff’s expert, Dr. Sarachek’s declaration failed to show a medical probability that Plaintiff would have survived per Simmons. This failure coupled with the declaration’s procedural defect in identifying the medical records reviewed supported the Court’s decision in finding that Plaintiff failed to meet its burden of proof to show a triable issue of material fact. As such, the Court finds that there was no error in law in granting the 6/5/14 motions for summary judgment.

The Court notes, without explicitly deciding, that it would be inclined to deny the motion even if other subdivisions of §657 were properly cited in the points and authorities based upon the above.

Accordingly, the motion for new trial is denied.
Dated this 24th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court