Abelar v. Tilles CA2/3 ( 2021 )

Filed 12/6/21 Abelar v. Tilles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DEE ANN ABELAR et al., B302351
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC641637
v.
IRA TILLES et al.,
Defendants and Respondents.
APPEALS from judgments of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy Rand-Lewis for Plaintiffs and Appellants.
Schaeffer Cota Rosen, James C. Schaeffer and Jennifer B.
Saccomano for Defendants and Respondents Ira Tilles and
Tilles, M.D. Corporation.
Law Offices of Michael D. Gonzalez, Michael D. Gonzalez
and Andrea D. Vazquez for Defendants and Respondents Pejman
Badiei and Pejman Badiei, M.D., Incorporated.
_______________________________________
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,
defendants and respondents Dr. Ira Tilles and Dr. Pejman
Badiei,2 together with their medical corporations, Tilles M.D.
Corporation, and Pejman Badiei, M.D., Incorporated (collectively,
defendants.) Plaintiffs appeal from judgments entered after the
trial court granted defendants’ motions for summary judgment.
Plaintiffs’ case concerns an alleged failure by defendants,
and others, to diagnose and treat an infection. Dee Ann
underwent surgery to remove a mass from her brain. Several
weeks after the surgery, she suffered a prolonged grand mal
seizure and was admitted to the emergency department at Simi
Valley Hospital. There, she was evaluated and treated by Tilles
and several other physicians. She was discharged the same day
but returned 10 days later exhibiting stroke-like symptoms. She
was again treated in the emergency department by Tilles and by
Badiei upon her admission to the hospital, where she remained
for more than a week until she was transferred to another
facility, USC Keck Medical Center, to receive a higher level of
care. There, eight days after Dee Ann’s discharge from Simi
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 the individual defendants are physicians, we refer to them
throughout our opinion by their last names only. We reserve the use of
the honorific, “Dr. _____,” for the medical experts. No disrespect is
intended.
2
Valley Hospital, doctors discovered the presence of an infection.
Plaintiffs contend Tilles and Badiei, among others, negligently
failed to diagnose and treat the infection while Dee Ann was
treated at Simi Valley Hospital.
Defendants separately moved for summary judgment and
supported their motions with declarations by expert physicians
who opined that their treatment met the standard of care and did
not cause or contribute to the infection. As we explain, plaintiffs
failed to present admissible expert testimony in opposition to the
motions for summary judgment. For that reason, and others, we
concluded the trial court properly granted the motions for
summary judgment. Accordingly, 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 2016.3 As pertinent here, the
complaint states causes of action for professional negligence and
loss of consortium against Tilles and Badiei.4
According to the complaint, on October 6, 2015, a
neurosurgeon at Providence Saint John’s Hospital performed
surgery on Dee Ann to remove a meningioma that had been
3References to Tilles and Badiei include their eponymous corporate
entities as appropriate.
4The complaint includes eight causes of action. All but two of those
were resolved in favor of Tilles and Badiei pursuant to a successful
demurrer by another physician defendant and stipulation between
plaintiffs and the remaining physician defendants.
3
compressing her optic nerve. On November 20, 2015, Dee Ann
suffered a grand mal seizure and was admitted to the emergency
department at Simi Valley Hospital where she was examined and
treated by Tilles, a physician in the emergency medicine
department. She was discharged later that day.
Dee Ann was admitted to the emergency department at
Simi Valley Hospital again on November 30, 2015, and was
subsequently treated by both Tilles and Badiei, a physician and
hospitalist at Simi Valley Hospital. Dee Ann remained
hospitalized until she was transferred to USC Keck Medical
Center on December 11, 2015.
Dee Ann had a second surgery on December 18, 2015,
during which portions of her brain and skull had to be removed
due to an infection. The infection was definitively diagnosed on
December 19, 2015.
With respect to the professional negligence claims,
plaintiffs contend the infection was present throughout the time
Tilles and Badiei treated Dee Ann and that the physicians’
failure to diagnose and treat the infection fell below the standard
of care. Plaintiffs also assert a claim for loss of consortium.
2. Tilles’s Motion for Summary Judgment
Tilles filed a motion for summary judgment. With respect
to the professional negligence claim, Tilles asserted that Dee Ann
would be unable to establish two elements of the claim: breach of
the standard of care and causation. The motion was supported by
a declaration by Dr. David Barcay, a physician and specialist in
internal medicine and emergency medicine. Dr. Barcay reviewed
Dee Ann’s medical records and opined that Tilles met the
standard of care at all times while treating Dee Ann and that no
act or omission by Tilles caused or contributed to her
4
subsequently-diagnosed infection. Tilles also argued that because
Dee Ann’s negligence claim failed, the loss of consortium claim
necessarily failed.
Plaintiffs opposed the motion on myriad but largely
unsupported grounds. Oddly, plaintiffs argued that Dr. Barcay’s
expert opinion was inadmissible because “there is no proof that
Defendant [Tilles] was even a doctor.” Plaintiffs also asserted,
without analysis, that Tilles’s separate statement failed to state
any material facts. In addition, plaintiffs broadly claimed that all
facts asserted by Tilles were disputed but they failed to discuss
with particularity even one fact they claimed was disputed. And
although plaintiffs proffered an expert declaration by Dr.
Leslie B. Rand-Luby, they did not discuss any aspect of her
opinion in their opposition brief. Finally, and again without any
substantive analysis, plaintiffs suggested Dr. Barcay’s opinion
was “insufficient” because it was “baseless, improper and false”
as well as “conclusory.” Plaintiffs also offered their own
declarations in support of their opposition.
In reply, Tilles argued that plaintiffs’ physician expert was
not qualified to offer an expert opinion regarding the standard of
care. Specifically, Health and Safety Code section 1799.110
provides that in any negligence case asserted against a physician
providing emergency medical coverage for a general acute care
hospital emergency department, expert opinion may only be
admitted from physicians with substantial and recent experience
in that practice area. Plaintiffs’ expert was not so qualified.
The court granted Tilles’s motion for summary judgment.
As an initial matter, the court sustained Tilles’s objection to
Dr. Rand-Luby’s declaration on the ground that she lacked the
professional experience required under Health and Safety Code
5
section 1799.110. Accordingly, the court found that the
declaration was inadmissible. As a consequence of the court’s
evidentiary ruling, plaintiffs’ opposition was unsupported by
appropriate expert evidence required to create a dispute of
material fact concerning the standard of care and/or medical
causation. The court concluded, therefore, that plaintiffs failed to
establish the existence of a dispute of material fact.
3. Badiei’s Motion for Summary Judgment
Badiei also filed a motion for summary judgment arguing
that his care and treatment of Dee Ann met the standard of care.
The motion was supported by a declaration by Dr. Jeffrey
Salberg, a physician and specialist in internal medicine.
Dr. Salberg reviewed Dee Ann’s medical records and opined that
Badiei met the standard of care at all times while treating Dee
Ann. Badiei also argued that because the negligence claim failed,
the claim for loss of consortium also failed. Plaintiffs did not
oppose the motion.
The court granted Badiei’s motion for summary judgment
on both procedural and substantive grounds. Procedurally, the
court noted that plaintiffs failed to submit an opposition brief and
failed to address the facts set forth in Badiei’s separate
statement. The court therefore exercised its discretion to grant
Badiei’s motion for summary judgment under Code of Civil
Procedure section 437c, subdivision (b)(3).5
5 That subsection provides: “The opposition papers shall include a
separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating if the
opposing party agrees or disagrees that those facts are undisputed.
The statement also shall set forth plainly and concisely any other
material facts the opposing party contends are disputed. Each material
6
The court also granted the motion on substantive grounds.
Badiei submitted uncontradicted expert evidence establishing
that his care and treatment of Dee Ann met the standard of care
and that no act or omission by Badiei caused or contributed to the
infection. Because plaintiffs failed to offer any evidence of
negligence or causation, the court concluded that Badiei was
entitled to summary judgment as to the professional negligence
claim as well as the loss of consortium claim.
4. Entry of Judgments and Appeals
On September 6, 2019, the court signed and entered
judgment in favor of Tilles. Plaintiffs timely appeal.
On September 20, 2019, the court signed and entered
judgment in favor of Badiei. Plaintiffs timely appeal.
DISCUSSION
Plaintiffs claim the court erred by granting the motions for
summary judgment brought by Tilles and Badiei. 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
fact contended by the opposing party to be disputed shall be followed
by a reference to the supporting evidence. Failure to comply with this
requirement of a separate statement may constitute a sufficient
ground, in the court’s discretion, for granting the motion.”
7
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., § 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
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.
8
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
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
9
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
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 Tilles.
3.1. Plaintiffs’ Complaint
As noted, we first consider the allegations of plaintiffs’
complaint to determine the scope of the issues. Plaintiffs allege
Dee Ann was admitted to the emergency department at Simi
Valley Hospital by Tilles on November 20, 2015, after suffering a
grand mal seizure. Further, plaintiffs allege Dee Ann reported to
Tilles that she had been suffering decreased vision and double
vision, fever and nausea with vomiting, and had had a seizure.
Plaintiffs allege Tilles breached the standard of care by failing to
10
diagnose an infection which subsequently caused Dee Ann
serious injury. As to Dee Ann’s second admission to Simi Valley
Hospital on November 30, 2015, plaintiffs’ allegations are less
specific, in that they state only that Tilles treated her at some
point and again breached the standard of care by failing to
diagnose Dee Ann’s infection.
3.2. Tilles’s Evidence
As the moving party, Tilles 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. (Code Civ.
Proc., § 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.)
Tilles’s motion for summary judgment addressed the first
two elements of negligence: standard of care and causation. As to
the standard of care, Tilles’s expert physician, Dr. Barcay,
reviewed Dee Ann’s medical records from Providence Saint
Joseph Medical Center and Simi Valley Hospital. Dr. Barcay
noted that Tilles’s first examination of Dee Ann on November 20,
2015, was normal, i.e., she was oriented to person, place, time,
and situation, her sensory, motor, speech, and coordination skills
were normal, her white blood cell count was normal, and she had
no nausea or vomiting, no shortness of breath, and no neck
rigidity. Tilles ordered a CT scan of the brain and reviewed the
results with a staff neurologist, who indicated Dee Ann did not
11
need to be observed in the hospital. Tilles attributed Dee Ann’s
seizure to her discontinuation of a prophylactic anti-seizure
medication and discharged her with a prescription for a different
medication and instructions to follow-up with the neurologist as
an outpatient.
Dr. Barcay opined, based on his education, training, and
extensive experience as an emergency medicine physician, that
Tilles met the standard of care in attributing Dee Ann’s seizure
to the discontinuation of anti-seizure medication, concluding that
the CT imaging demonstrated no intracranial process or acute
intracranial hemorrhage, prescribing a different anti-seizure
medication, and discharging Dee Ann after consulting with a
neurologist.
Dr. Barcay drew similar conclusions with respect to Dee
Ann’s admission to Simi Valley Hospital on November 30, 2015.
When Dee Ann came to the hospital, she exhibited stroke-like
symptoms including an inability to speak as well as facial droop
and muscle paralysis on her left side. Tilles called a “Code
Stroke” and consulted with the staff neurologist and Dee Ann’s
neurosurgeon. Tilles then admitted Dee Ann to the hospital for
further observation and treatment. Dr. Barcay concluded that
Tilles’s request for a consult and his decision to admit Dee Ann
were both within the standard of care.
Critically, Dr. Barcay opined that on the two days Tilles
treated Dee Ann, she had no clinical, radiological, or laboratory
signs or symptoms which would have alerted an emergency
medicine physician that she had meningitis or any infectious
process at that time. Specifically, Dee Ann’s white blood cell
counts were within normal range, she reported no neck rigidity or
tension, she was not experiencing nausea or vomiting, and she
12
was not photophobic. Accordingly, Dr. Barcay attested, to a
reasonable degree of medical certainty, Tilles met the standard of
care with respect to his treatment and care of Dee Ann, and that
nothing Tilles did, or did not do, contributed in any way to her
alleged injuries.
We agree with the court that Tilles provided sufficient
evidence to meet his initial burden of production with respect to
standard of care and causation. The burden therefore shifted to
plaintiffs to submit expert declarations demonstrating the
existence of a material fact on these issues.
3.3. Plaintiffs’ Evidence
In support of their opposition to the motion for summary
judgment, plaintiffs offered three pieces of evidence. As noted,
they offered a declaration by Dr. Rand-Luby which the court
determined was wholly inadmissible. We address the court’s
evidentiary ruling, post.
Plaintiffs also offered their own declarations. As pertinent
here, Dee Ann attested that Tilles admitted her to Simi Valley
Hospital on November 20, 2015. She had been suffering
decreased vision and double vision, fever, nausea with vomiting,
and vomited in the emergency room. She also denied that she
stopped taking anti-seizure medication, contrary to Tilles’s notes.
Brian’s declaration also stated that Dee Ann had been suffering
decreased vision and double vision, fever, nausea with vomiting,
and had vomited in the emergency room.
3.4. Analysis
Plaintiffs’ core contention is that Tilles failed to submit
sufficient evidence in support of his motion for summary
judgment to shift the burden to them. As we explain, plaintiffs
13
are incorrect and their remaining claims of error are
unpersuasive.
3.4.1. The court properly excluded the expert
physician’s declaration proffered by plaintiffs.
As noted, the court excluded the expert declaration offered
by plaintiffs in support of their opposition to Tilles’s motion for
summary judgment because the physician was not qualified
under Health and Safety Code section 1799.110 to offer an
opinion regarding the standard of care for a physician practicing
emergency medicine.6 Plaintiffs do not challenge the court’s
ruling on that basis. We note, however, that the court’s ruling is
correct. Plaintiffs were required to provide “expert medical
testimony only from physicians and surgeons who have had
substantial professional experience within the last five years
while assigned to provide emergency medical coverage in a
general acute care hospital emergency department.” (Health &
Saf. Code, § 1799.110, subd. (c).) Their medical expert, however,
indicated only that she is “a medical doctor and general surgeon.”
Her curriculum vitae states that her current practice (from 1998
to the present) is “Staff Surgeon—General, Breast and Advanced
Laparoscopic Surgery” at Southern California Permanente
Medical Group in Irvine, California. Neither the expert’s
6 Health and Safety Code section 1799.110, subdivision (c), provides:
“In any action for damages involving a claim of negligence against a
physician and surgeon providing emergency medical coverage for a
general acute care hospital emergency department, the court shall
admit expert medical testimony only from physicians and surgeons
who have had substantial professional experience within the last five
years while assigned to provide emergency medical coverage in a
general acute care hospital emergency department … .”
14
declaration nor her curriculum vitae indicates that she has had
any specific training or experience in emergency medicine at any
time during her medical career.
Plaintiffs essentially concede the point as to their expert’s
opinions relating to the standard of care. They contend, however,
that the declaration should have been admitted for purposes of
establishing causation. We reject this argument because, as we
explain post, plaintiffs have failed to establish any dispute of
material fact which would support a finding that Tilles breached
the standard of care. Accordingly, even if the court erred by
excluding the declaration for all purposes, any error was not
prejudicial. (Cal. Const., art. VI, § 13 [judgment may not be
reversed on appeal unless “after an examination of the entire
cause, including the evidence,” it appears the error caused a
“miscarriage of justice”].)
3.4.2. Plaintiffs fail to demonstrate the existence of a
dispute of material fact.
Plaintiffs urge throughout their brief that disputes of
material fact exist. They rely mainly on the declaration of their
physician expert for that proposition. But, as just explained, the
court excluded that declaration in its entirety and, as to the issue
of standard of care, plaintiffs have not challenged the court’s
ruling. It is improper for plaintiffs to rely on evidence properly
excluded by the court. (See, e.g., Toho-Towa Co., Ltd. v. Morgan
Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1105–1106
[noting party on appeal may not rely on excluded evidence absent
a successful challenge to the trial court’s evidentiary ruling].)
Plaintiffs also appear to contend that their declarations,
submitted in opposition to Tilles’s motion for summary judgment,
create disputes of material fact. Specifically, although Tilles’s
15
records reflect that Dee Ann told him she had stopped taking an
anti-seizure medication, Dee Ann disputed that fact in her
declaration. Plaintiffs characterize this fact as “foundational” and
suggest that Tilles’s medical expert based his opinion on this
disputed fact, rendering his “entire opinion … irrelevant.”
To defeat a defense motion for summary judgment, a
plaintiff cannot simply demonstrate that a fact is disputed.
Instead, a plaintiff must show that the dispute of fact is material,
i.e., is critical or central to the claim at issue. (See Aguilar, supra,25 Cal.4th at p. 850 [“There is a triable issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion
in accordance with the applicable standard of proof.”];
Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th
444, 453.)
Plaintiffs have not explained how Dee Ann’s compliance or
noncompliance regarding the prescribed anti-seizure medication
relates to Tilles’s medical care as it concerns her subsequently
diagnosed infection. They did not, for example, offer admissible
expert testimony indicating that if Dee Ann reported that she
had been compliant with her anti-seizure medication, Tilles
should have pursued a different course of diagnosis or treatment,
or should have suspected an infection. In other words, plaintiffs
do not connect the purported factual dispute to the central,
material issue in this case.
Plaintiffs make similar claims regarding Dee Ann’s
purported fever, nausea, and vomiting. Although Tilles’s notes
indicate Dee Ann was not exhibiting those symptoms, both Dee
Ann and Brian declared to the contrary. As before, however,
plaintiffs do not explain how Dee Ann’s symptoms relate to
16
Tilles’s medical care nor do they connect those facts in any way to
her subsequently diagnosed infection. They did not offer
admissible expert testimony indicating that if Dee Ann had been
suffering from a fever accompanied by nausea and vomiting,
Tilles should have altered his diagnosis, prescribed a different
treatment, or should have suspected an infection. Again,
plaintiffs do not connect the purported factual dispute to the
central, material issue in this case.
3.4.3. Plaintiffs’ remaining arguments lack merit.
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 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 Tilles’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 repeatedly claim that Tilles failed to produce
sufficient evidence to shift the burden of proof to them. For
example, plaintiffs claim that Tilles’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 Tilles … clearly had not provided [a]
competent statement[ ] of facts to support adjudication of the
issues presented. Moreover, the separate statements were based
17
upon conclusory [d]eclarations.” In a similar vein, plaintiffs
suggest that the separate statement was not “supported by
competent evidence, but rather, by [a] self-serving [d]eclaration[ ]
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 Tilles’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 Tilles. As discussed ante,
however, Tilles submitted a detailed declaration by a physician
and expert in emergency medicine describing the clinical findings
Tilles made as well as his decisions to request consultations,
diagnostic tests, and imaging. The expert’s conclusions that Tilles
met the standard of care and did not cause or contribute to Dee
Ann’s infection are well supported.7 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 [if an
7 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, the 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 both Tilles’s and Badiei’s experts disclosed the materials relied
upon as well as the factual bases and reasons for their opinions.
18
appellant fails to support a claim with reasoned argument and
citations to authority we may treat that claim as waived].)
Plaintiffs fail to do so, relying instead on rhetoric and evidence
properly excluded by the court.
Finally, we reject plaintiffs’ claim that the court erred in
overruling their objections to Dr. Barcay’s declaration. Plaintiffs
do not discuss any specific objection nor do they identify any
particular impropriety in Dr. Barcay’s declaration. Again, they
rely solely on broad accusations unsupported by facts, law, or
coherent reasoning. Accordingly, we reject this argument as well.
3.5. 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.
4. The court properly granted summary judgment in
favor of Badiei.
4.1. Plaintiffs’ Complaint
Plaintiffs allege that on November 30, 2015, Dee Ann was
admitted to Simi Valley Hospital by Badiei and subsequently
treated by him until she was discharged on December 11, 2015.
She further alleges that Badiei’s failure to diagnose and treat an
infection fell below the standard of care, resulting in her injury.
19
4.2. Badiei’s Evidence
As the moving party, Badiei had the initial burden to show
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. (Code Civ. Proc., § 437c, subd. (o); see Jones, supra, 230
Cal.App.4th at p. 945.) Like Tilles, Badiei focused on standard of
care and causation in his motion for summary judgment.
In support of his motion, Badiei submitted a declaration by
a board-certified internist, Dr. Jeffrey Salberg. Dr. Salberg
reviewed Dee Ann’s medical records from Providence Saint
Joseph Medical Center, Simi Valley Hospital, Adventist Health
Physicians Network, Keck Hospital of USC, and Dee Ann’s
neurosurgeon. He provided a detailed assessment of Badiei’s
interactions with and treatment of Dee Ann while she was
hospitalized at Simi Valley Hospital from November 30, 2015 to
December 11, 2015, including Badiei’s reliance on appropriate
specialists and his discharge of Dee Ann for the purpose of
transferring her to USC Keck Medical Center for a higher level of
care.
Dr. Salberg opined that Badiei’s care was appropriate and
complied with the standard of care at all times during her stay at
Simi Valley Hospital. He also stated that Dee Ann’s blood test
results did not indicate or reveal an infection. Further,
Dr. Salberg opined that, to a reasonable degree of medical
probability, nothing Badiei did or did not do caused or
contributed to Dee Ann’s injuries, including an infection.
Specifically, he noted that Dee Ann’s white blood cell count
remained within normal range, she did not have a fever, and her
other symptoms related to a seizure disorder. In sum, there was
20
no reason for Badiei to suspect that Dee Ann had or was
developing an infection during her hospital admission.
We agree with the court that this evidence was sufficient to
shift the burden to plaintiffs.
4.3. Plaintiffs failed to oppose the motion for
summary judgment.8
As noted, plaintiffs did not submit a brief or separate
statement in opposition to Badiei’s motion for summary
judgment. The absence of opposition is fatal to their claims
against Badiei.
“ ‘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 Badiei satisfied his initial burden and plaintiffs
failed to submit any opposing evidence, Badiei was entitled to
summary judgment as a matter of law.
4.4. Loss of Consortium
For the reasons set forth in section 3.5, ante, plaintiffs’ loss
of consortium claim against Badiei also fails.
8 Our analysis of plaintiffs’ arguments in section 3.4, ante, applies with
equal force to Badiei’s motion for summary judgment. We discuss,
therefore, only the issue specific to Badiei in this section.
21
5. Plaintiffs failed to appeal from the order awarding
costs to Badiei.
Finally, plaintiffs challenge several categories of costs
awarded to Badiei. We lack jurisdiction to consider plaintiffs’
arguments because the judgment did not determine Badiei’s
entitlement to costs and plaintiffs failed to appeal from the
court’s subsequent costs order. (See Eisenberg, et al., Cal.
Practice Guide: Civil Appeals and Writs, ¶ 2.156.3 [noting “where
the final judgment is silent as to attorney fees and costs
(determines neither entitlement nor amount), the failure to
separately appeal a postjudgment order awarding costs and fees
is a jurisdictional bar to appellate review of the fees and costs
award”]; 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. [Citation.] … and if no appeal is taken from such an
order, the appellate court has no jurisdiction to review it.
[Citation.]”].)
22
DISPOSITION
The judgments are affirmed. Respondents Ira Tilles, Tilles
M.D., Corporation, Pejman Badiei, and Pejman Badiei M.D., Inc.,
shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
VIRAMONTES, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
23