Abelar v. Lee CA2/3 ( 2022 )

Filed 5/18/22 Abelar v. Lee CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DEE ANN ABELAR et al., B310762
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC641637
v.
JOUNG H. LEE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis for Plaintiffs and Appellants.
Wood, Smith, Henning & Berman, Brian L. Hoffman, and
Nicholas M. Gedo for Defendant and Respondent.
_______________________________________
INTRODUCTION
This is a medical malpractice and loss of consortium action
brought by plaintiffs and appellants Dee Ann Abelar and her
husband Brian Abelar (plaintiffs)1 against, as pertinent here,
defendant and respondent Joung H. Lee, M.D.2 Plaintiffs appeal
from a judgment entered after summary judgment in Lee’s favor.
Lee is a neurosurgeon who performed a craniotomy on
Dee Ann in early October 2015. Approximately six weeks after
the surgery, Dee Ann began experiencing neurological symptoms
including seizures, and was treated by Lee as well as several
other physicians at a local hospital. Eventually, in mid-
December 2015, Dee Ann was admitted to USC Keck Medical
Center. There, doctors discovered an infection. Plaintiffs contend
Lee, among others, negligently failed to diagnose and treat the
infection.
Lee moved for summary judgment and supported his
motion with a declaration by an expert neurosurgeon who opined
that Lee’s treatment met the standard of care and did not cause
or contribute to the infection. Plaintiffs did not oppose the
motion. The court granted the motion for summary judgment
because Lee met his initial burden to demonstrate that plaintiffs
would be unable to establish that he was negligent and plaintiffs
failed to offer any expert medical evidence demonstrating, or
1Because plaintiffs have the same last name, we refer to Dee Ann
Abelar by her first name in describing the facts of the case. No
disrespect is intended.
2 Although Lee is a physician, we refer to him throughout our opinion
by his last name only. We reserve the use of the honorific, “Dr. _____,”
for the medical expert. No disrespect is intended.
2
even suggesting, Lee failed to meet the standard of care. We
affirm.
FACTS AND PROCEDURAL BACKGROUND
1. General Background
Plaintiffs filed this medical malpractice action against
numerous physicians, their associated medical corporations, and
several hospitals in December 2016. As pertinent here, the
complaint states causes of action for professional negligence and
loss of consortium against Lee.3
According to the complaint, on October 6, 2015, Lee
performed a craniotomy on Dee Ann to remove a meningioma
that had been compressing her optic nerve. She was discharged
from the hospital two days after the surgery. On November 20,
2015, Dee Ann suffered a grand mal seizure and was briefly
admitted to the emergency department at a local hospital. A few
days later, Dee Ann sought further medical care from Lee, who
did not diagnose an infection. Dee Ann continued to experience
seizures and other neurological symptoms and was admitted to a
local hospital on November 30, 2015. Dee Ann remained
hospitalized until she was transferred to USC Keck Medical
Center on December 11, 2015. There, doctors performed a second
craniotomy on December 18, 2015, during which portions of
Dee Ann’s brain and skull were removed. An infection was
definitively diagnosed on December 19, 2015.
3The complaint includes eight causes of action. All but two of those
were resolved in favor of Lee pursuant to a successful demurrer by
another physician defendant and a stipulation between plaintiffs and
the remaining physician defendants.
3
With respect to the professional negligence claim, plaintiffs
contend Dee Ann was suffering from an infection before, during,
and after the surgery performed by Lee and that Lee’s failure to
diagnose and treat the infection fell below the standard of care.
Plaintiffs also assert a claim for loss of consortium.
2. Lee’s Unopposed Motion for Summary Judgment
Lee filed a motion for summary judgment. With respect to
the professional negligence claim, Lee asserted that plaintiffs
would be unable to establish that he breached the standard of
care or that any action or inaction by Lee caused plaintiffs’
alleged injuries. The motion was supported by a declaration by
Dr. John Yu, an expert in neurosurgery and in the treatment of
brain tumors. Dr. Yu reviewed Dee Ann’s medical records and
opined that Lee met the standard of care at all times while
treating Dee Ann and that no act or omission by Lee caused or
contributed to her subsequently-diagnosed infection. Lee also
argued that because Dee Ann’s negligence claim failed, the loss of
consortium claim necessarily failed.
The court granted Lee’s motion for summary judgment.
Specifically, the court concluded Dr. Yu’s declaration established
that Lee’s care and treatment of Dee Ann met the standard of
care and that no act or omission by Lee caused or contributed to
the infection. Because plaintiffs failed to offer any evidence of
negligence or causation in opposition to Lee’s motion, the court
concluded that Lee was entitled to summary judgment as to the
professional negligence claim as well as the loss of consortium
claim.
4
3. Entry of Judgment and Appeal
The court entered judgment in favor of Lee on February 14,
2020. Plaintiffs timely appeal.
DISCUSSION
Plaintiffs claim the court erred by granting Lee’s motion for
summary judgment. We disagree.
1. Scope and Standard of Review
The standard of review is well established. “The purpose of
the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of
law.” (Id. at p. 850; Code Civ. Proc.,4 § 437c, subd. (c).) The
pleadings determine the issues to be addressed by a summary
judgment motion. (Metromedia, Inc. v. City of San Diego (1980)
26 Cal.3d 848, 885, reversed on other grounds by Metromedia,
Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield
of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,
74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
4All undesignated statutory references are to the Code of Civil
Procedure.
5
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) “In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) “We
need not defer to the trial court and are not bound by the reasons
in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) Further, “an appellant must present argument and
authorities on each point to which error is asserted or else the
issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
2. Legal Principles Regarding Professional Negligence
As the party with the ultimate burden at trial, plaintiffs
would be required to establish medical negligence by proving
“(1) a duty to use such skill, prudence, and diligence as other
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members of the profession commonly possess and exercise; (2) a
breach of the duty; (3) a proximate causal connection between the
negligent conduct and the injury; and (4) resulting loss or
damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,
305.)
With respect to the first element, the standard of care for
medical professionals requires “ ‘ “that a physician or surgeon
have the degree of learning and skill ordinarily possessed by
practitioners of the medical profession in the same locality and
that he [or she] exercise ordinary care in applying such learning
and skill to the treatment of [the] patient.” [Citation.]’ ”
(Flowers v. Torrance Memorial Hospital Medical Center (1994)
8 Cal.4th 992, 998, final brackets added; see also Brown v. Colm
(1974) 11 Cal.3d 639, 642–643 [noting “a doctor is required to
apply that degree of skill, knowledge and care ordinarily
exercised by other members of his profession under similar
circumstances”]; McAlpine v. Norman (2020) 51 Cal.App.5th 933,
938 [same].) “Proof of this standard is ordinarily provided by
another physician, and if a witness has disclosed sufficient
knowledge of the subject to entitle his opinion to go to the jury,
the question of the degree of his [or her] knowledge goes to the
weight of [the] testimony rather than to its admissibility.”
(Brown, at p. 643; In re Roberto C. (2012) 209 Cal.App.4th 1241,
1249.) Thus, the standard of care can ordinarily be proved only by
expert testimony, “ ‘unless the conduct required by the particular
circumstances is within the common knowledge of the layman.’
[Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)
Proof of causation may also require expert testimony
“[w]here the complexity of the causation issue is beyond common
experience.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193
7
Cal.App.4th 1563, 1569; accord, Webster v. Claremont Yoga
(2018) 26 Cal.App.5th 284, 290.) In a summary judgment
proceeding, an expert’s opinions may be rejected if they are
conclusory, speculative, without foundation, or stated without
sufficient certainty. (Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 155–156
(Sanchez).)
3. The court properly granted summary judgment in
favor of Lee.
3.1. Plaintiffs’ Complaint
As noted, we first consider the allegations of plaintiffs’
complaint to determine the scope of the issues. Plaintiffs allege
that Lee performed surgery on Dee Ann even though her
preoperative screening, performed by a different physician,
indicated that she had an infection. Plaintiffs also allege Lee, and
others, failed to identify and treat the infection after the surgery.
Specifically, plaintiffs allege that Dee Ann reported to Lee that
she was experiencing decreased vision, double vision, fever,
nausea, and vomiting—symptoms consistent with the presence of
an infection. Plaintiffs further allege that Dee Ann suffered a
grand mal seizure in late November 2015 and subsequently
sought further care from Lee, who did not diagnose an infection
at that time. In addition, plaintiffs contend Lee failed to visit
Dee Ann while she was hospitalized in early December at a local
hospital, despite her request that he attend to her there. Brian
subsequently met with Lee in his office and, after reviewing
8
Dee Ann’s brain scans, Lee opined that the scans were normal
and that she should continue treatment at the local hospital.5
Plaintiffs contend that this conduct failed to meet the
standard of care and that Lee’s negligent conduct caused and
contributed to her injuries and Brian’s loss of consortium.
3.2. Lee’s Evidence
As the moving party, Lee had the initial burden to show
that plaintiffs’ claims have no merit—that is, that one or more
elements of the cause of action cannot be established, or that
there is a complete defense to that cause of action. (§ 437c,
subd. (o); see Jones v. Wachovia Bank (2014) 230 Cal.App.4th
935, 945 (Jones).) “If a defendant’s moving papers make a prima
facie showing that justifies a judgment in its favor, the burden of
production shifts to the plaintiff to make a prima facie showing of
the existence of a triable issue of material fact.” (Jones, at p. 945;
Professional Collection Consultants v. Lauron (2017) 8
Cal.App.5th 958, 965.)
Lee’s motion for summary judgment addressed two
elements of plaintiffs’ negligence claim: standard of care and
causation. As to the standard of care, Lee’s expert physician,
Dr. Yu, opined that Lee’s treatment of Dee Ann met the standard
of care. Specifically, Lee properly recommended surgery based on
Dee Ann’s symptoms and condition, i.e., the presence of a
5 Plaintiffs’ complaint alleges that Lee failed to obtain informed
consent from Dee Ann prior to the surgery. Because plaintiffs have not
addressed that point in their opening brief, they have forfeited the
issue. (Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655–656 [noting
matters not properly raised or that lack adequate legal discussion will
be deemed forfeited].)
9
4.4-centimeter tumor that was causing visual disturbance.
Further, Lee reasonably relied on the preoperative examination
conducted by another physician before performing Dee Ann’s
surgery. That examination showed Dee Ann was medically stable
and she was cleared for surgery. Although Dee Ann’s white blood
cell count was slightly elevated, she showed no symptoms of an
infection and therefore no further testing was required prior to
surgery. No signs of infection were detected during the surgery
on October 6, 2015.
After the surgery, Dee Ann’s white blood cell count was
further elevated but remained within normal limits. Dr. Yu
explained that an elevated white blood cell count after surgery is
not generally an indication of an infection, especially in the
absence of any other indicators such as abnormal laboratory test
results or vital signs. Further, neither the postoperative physical
examinations of Dee Ann nor her imaging studies revealed any
sign of an infection. On that basis, Dr. Yu opined that Dee Ann
was not experiencing an infection when Lee performed the
surgery or in the days that followed.
Due to the surgery, Dee Ann was at risk of experiencing
seizures and Lee prescribed an anti-seizure medication and a
steroid to reduce that risk. Dee Ann saw Lee for a postoperative
appointment 10 days after surgery, on October 16, 2015. Her
vision symptoms had substantially improved and other findings
were normal. Lee asked Dee Ann to return in five weeks for a
follow-up appointment.
Dee Ann was admitted to a local hospital’s emergency
department on November 20, 2015, after suffering an extended
seizure. The treating physician noted that Dee Ann had stopped
taking the anti-seizure medication Lee prescribed. But she
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showed no signs of an infection and her white blood cell count
was normal. Dr. Yu noted that the normal white blood cell count
provided further evidence that Dee Ann had not been suffering
from an infection at the time of her surgery. As expected, her
elevated postsurgical white blood cell count had resolved without
treatment which would not have occurred if she had an untreated
infection, as plaintiffs claimed.
Dee Ann attended a postoperative appointment with Lee on
November 24, 2015. Lee noted that Dee Ann had discontinued
her anti-seizure medication prior to the seizure on November 20,
2015, but was now taking a different anti-seizure medication.
Her imaging reports from the hospital were normal, i.e., showed
no sign of infection. Dr. Yu concluded that Dee Ann showed no
physical or clinical signs of an infection at that time.
Dee Ann was admitted to the same local hospital on
November 30, 2015, after experiencing stroke-like symptoms. Lee
conferred with the treating physicians at the hospital and
concurred with their diagnosis (Todd’s paralysis) and proposed
treatment (increased dosage of anti-seizure medication.) Dr. Yu
noted that subsequent imaging studies and laboratory tests
showed no sign of an infection and no other treating physician
documented any concern about an infection prior to December 16,
2015.
On December 18, 2015, Dee Ann underwent a second
craniotomy which was performed by a neurosurgeon at USC Keck
Medical Center. Cultures taken during the surgery indicated the
presence of an infection. Dr. Yu opined, however, to a reasonable
degree of medical probability, that Lee conformed to the
applicable standard of care for a neurosurgeon and that nothing
he did or did not do during the surgery or in his subsequent
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treatment of Dee Ann caused or contributed to an infection or
Dee Ann’s alleged injuries.
We agree with the court that Lee provided sufficient
evidence to meet his initial burden of production with respect to
the standard of care and causation regarding the professional
negligence claim. And as we explain, plaintiffs’ arguments to the
contrary are unavailing.
Plaintiffs’ main contention is that Lee failed to produce
sufficient evidence to shift the burden of proof to them. For
example, plaintiffs claim that Lee’s separate statement did not
“provide a proper basis for his request for summary judgment,
and the Trial Court committed reversible error by allowing the
motion to go forward when [Lee] clearly had not provided a
competent statement of facts to support adjudication of the issues
presented. Moreover, the separate statement was based upon the
conclusory [d]eclaration of John Yu, M.D.” In a similar vein,
plaintiffs suggest that “[t]he separate statement was not
supported by competent evidence, but rather, by a self-serving
Declaration consisting of hearsay and conclusions of law, which
was patently insufficient to satisfy the evidentiary requirements
of CCP § 437c, and shift the burden of proof to [plaintiffs].”
In claiming that Lee’s motion for summary judgment was
not supported by sufficient evidence, plaintiffs make only broad
assertions that the evidence was incompetent, without any
analysis of the evidence submitted by Lee. As discussed ante,
however, Lee submitted a detailed declaration by an expert in
neurosurgery describing the clinical findings Lee made, his
decisions to recommend and perform surgery, and his assessment
of postsurgical imaging and laboratory findings. The expert’s
conclusions that Lee met the standard of care and did not cause
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or contribute to Dee Ann’s infection are well supported.6 To show
that such evidence failed to shift the burden to them, plaintiffs
needed to do more than make a bare assertion that the
supporting evidence was incompetent. Instead, they were
required to demonstrate through reasoned argument and
citations to relevant evidence and legal authority why the
evidence was incompetent. (See Dietz v. Meisenheimer & Herron
(2009) 177 Cal.App.4th 771, 799 (Dietz) [noting that if an
appellant fails to support a claim with reasoned argument and
citations to authority we may treat that claim as waived].)
Plaintiffs utterly fail to do so.
Plaintiffs also contend the court erred by granting the
motion for summary judgment because Lee “failed to show that
[plaintiffs] could not establish each element of their prima facie
case for Professional Negligence – Medical Malpractice by
Physician.” But Lee was not required to disprove each element of
plaintiffs’ claim. It was sufficient to demonstrate that plaintiffs
would be unable to establish one element of their claim. (§ 437c,
subds. (o)(1) [“A cause of action has no merit if … [¶] [o]ne or
more of the elements of the cause of action cannot be separately
established … .”] & (p)(2) [“A defendant or cross-defendant has
met his or her burden of showing that a cause of action has no
6 Citing Kelly v. Trunk (1998) 66 Cal.App.4th 519, plaintiffs argue that
“an expert’s bare conclusion is insufficient to support summary
judgment, just as it would be insufficient at trial.” Indeed, that court
stated that “an opinion unsupported by reasons or explanations does
not establish the absence of a material fact issue for trial, as required
for summary judgment.” (Id. at p. 524.) This case is inapplicable
because Lee’s expert disclosed the materials relied upon as well as the
factual bases and reasons for his opinions.
13
merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be
established … .”].)
Finally, plaintiffs claim that Lee’s separate statement
violated a rule of court and therefore his motion did not shift the
burden to them. We reject this argument because plaintiffs
provide no analysis of the facts and cite no applicable legal
authority supporting their position. (See Dietz, supra, 177
Cal.App.4th at p. 799.)
3.3. Plaintiffs failed to oppose the motion for
summary judgment.
As noted, plaintiffs did not submit a brief or separate
statement in opposition to Lee’s motion for summary judgment.
Given that Lee satisfied his initial burden, the absence of
opposition is fatal to plaintiffs’ claims against him.
“ ‘Whenever the plaintiff claims negligence in the medical
context, the plaintiff must present evidence from an expert that
the defendant breached his or her duty to the plaintiff and that
the breach caused the injury to the plaintiff.’ [Citation] ‘ “ ‘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.’ ” ’ [Citation.]” (Sanchez, supra, 8 Cal.App.5th at
p. 153.) Because Lee satisfied his initial burden and plaintiffs
failed to submit any opposing evidence, Lee was entitled to
summary judgment as a matter of law.
Undeterred, plaintiffs argue at length that the absence of
medical expert testimony supporting their case is immaterial.
They urge, citing both the common knowledge doctrine and the
14
principle of res ipsa loquitur, that medical expert testimony is not
required where the circumstances of the injury suggest that the
injury was likely the result of a simple negligent act, rather than
a course of treatment involving medical judgment beyond the
common knowledge of a layperson. We reject this argument
because plaintiffs failed to raise it in opposition to Lee’s motion
for summary judgment. (See, e.g., Sea & Sage Audubon Society,
Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [noting “ ‘issues
not raised in the trial court cannot be raised for the first time on
appeal’ ”].)
Plaintiffs also contend the court should have denied or
continued Lee’s motion for summary judgment under
section 437c, subdivision (h). But plaintiffs did not request a
continuance in advance of the hearing and have provided no
evidence supporting their contention that a continuance was
warranted.
3.4. Because the negligence cause of action fails, the
loss of consortium claim also fails.
It is well-settled that “an unsuccessful personal injury suit
by the physically injured spouse acts as an estoppel that bars the
spouse who would claim damages for loss of consortium.”
(Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034–1035; see
also Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315–
1316; Haning et al., Cal. Practice Guide: Personal Injury,
¶ 3:2413.) Because we conclude plaintiffs’ negligence cause of
action fails, we must also conclude the cause of action for loss of
consortium fails.
15
4. We lack jurisdiction to consider plaintiffs’ remaining
arguments.
“ ‘Our jurisdiction on appeal is limited in scope to the notice
of appeal and the judgment or order appealed from.’ ” (Faunce v.
Cate (2013) 222 Cal.App.4th 166, 170.) “If an order is appealable,
an aggrieved party must file a timely notice of appeal from the
order to obtain appellate review. [Citation.] A notice of appeal
from a judgment alone does not encompass other judgments and
separately appealable orders … .” (Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [concluding
that notice of appeal mentioning only the underlying judgment
did not make it reasonably clear that the appellant also intended
to appeal from a separate and directly appealable order granting
a new trial].)
Plaintiffs’ notice of appeal states the appeal is from a
“judgment entered after summary judgment” entered on
February 14, 2020. But in their opening brief, plaintiffs also
challenge two postjudgment orders of the court. Specifically,
plaintiffs argue the court erred by denying their motion to vacate
the judgment under section 473, subdivision (b), and by denying
their motion to tax Lee’s costs. Both these orders are separately
appealable. (See Generale Bank Nederland v. Eyes of the Beholder
Ltd. (1998) 61 Cal.App.4th 1384, 1394 [noting an order denying a
motion under section 473 is regarded as a special order made
after final judgment and is appealable]; Norman I. Krug Real
Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46
[“A postjudgment order which awards or denies costs or
attorney’s fees is separately appealable. [Citations.] … [a]nd if no
appeal is taken from such an order, the appellate court has no
jurisdiction to review it. [Citation.]”].)
16
In order to challenge these two orders on appeal, plaintiffs
needed to separately identify them on their notice of appeal (by,
for example, providing the dates of the orders and checking the
appropriate box on the form) or file separate notices of appeal
from those orders. They did neither. As a result, we lack
jurisdiction to consider plaintiffs’ challenges to these orders.7
DISPOSITION
The judgment is affirmed. Respondent Joung H. Lee shall
recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
7We also note that plaintiffs did not appeal from the court’s March 9,
2021 amended judgment awarding Lee costs in the amount of
$13,935.05.
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