Villasenor v. P.T.C.H. CA4/2 ( 2022 )

Filed 8/11/22 Villasenor v. P.T.C.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RICHARD VILLASENOR,
Plaintiff and Appellant, E076598
v. (Super.Ct.No. RIC1715739)
P.T.C.H., Inc., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Carol A. Greene, Judge.
Affirmed.
McElfish Law Firm, Raymond D. McElfish and Tara Heckard-Bryant for Plaintiff
and Appellant.
La Follette, Johnson, DeHaas, Fesler & Ames, Scott A. Blakeley, Jason Scupine
and David J. Ozeran for Defendant and Respondent.
1
Plaintiff Richard Villasenor appeals from the summary judgment entered in favor
of defendant P.T.C.H., Inc. doing business as Palm Terrace Care Center (Palm Terrace).
Villasenor also appeals from the trial court’s denial of his postjudgment motions for
reconsideration and a new trial and to vacate the judgment. We affirm.
BACKGROUND
Palm Terrace is a long-term care facility. Villasenor’s father died in March 2017,
allegedly as the result of Palm Terrace’s negligent care. In 2017, Villasenor filed a
lawsuit against Palm Terrace based on the alleged wrongful death of his father.
Villasenor’s father had been discharged from the facility in August 2016. Villasenor
alleged that Palm Terrace failed to prevent his father from developing pressure sores and
did not properly treat the pressure sores that developed, causing his father’s eventual
death.
In July 2020, Palm Terrace moved for summary judgment on the ground that there
was no disputed issue of fact as to whether Palm Terrace’s care caused Villasenor’s
father’s death. Palm Terrace also filed an additional motion for summary judgment on a
different ground, arguing that there was not a disputed issue of fact as to whether Palm
Terrace breached the standard of care. That motion is not included in the record on
appeal and is not the subject of this appeal. Palm Terrace supported the motion on the
issue of causation with the declaration of Andrew S. Wachtel, M.D., a medical doctor
board certified in internal medicine, pulmonary diseases, and critical care. Wachtel
identified the medical records he had reviewed, including those from the decedent’s stay
2
at Palm Terrace from July 15, 2016, through August 26, 2016, and after discharge from
Palm Terrace.
According to Wachtel, the decedent’s medical records revealed that upon
admission to Palm Terrace, the decedent “had a Stage II left coccyx pressure ulcer,”
which was treated during his stay at Palm Terrace and “completely resolved.” When
Palm Terrace discharged the decedent, a nurse at Palm Terrace evaluated the decedent’s
skin and noted that decubitus ulcers were not present. Wachtel opined that upon
discharge, the decedent’s “skin condition was in better condition than it was on
admission.” Several months after the decedent’s discharge from Palm Terrace, on
October 31, 2016, the decedent was diagnosed with a “Stage IV ulcer” on his buttocks,
which Wachtel opined was not caused by the care provided at Palm Terrace. Wachtel
further opined “to a reasonable degree of medical probability” that the ulcer did not cause
the decedent’s death. Wachtel opined “to a reasonable degree of medical probability”
that the decedent’s death instead was caused by “pneumonia with accompanying sepsis
which ultimately resulted in cardiorespiratory arrest.” The decedent’s death certificate
documents that his death resulted from cardiorespiratory arrest and rectal cancer.
A hearing on the motion was held on October 27, 2020. Villasenor had not filed
opposition to the motion, so the trial court granted it. The next day, Villasenor filed an ex
parte application to set aside the order, which the court granted. The court set a hearing
on the summary judgment motion for November 19, 2020, and ordered the deadlines for
3
filing opposition and reply papers to be reset to run from the new hearing date.1 At the
hearing, the court noted that throughout the litigation, plaintiff’s counsel had repeatedly
requested extensions, failed to attach exhibits to a declaration submitted in opposition to
an earlier motion for summary judgment, and failed to correct defects after being notified
of them by the court. The court warned plaintiff’s counsel that the newly set summary
judgment hearing would not be continued again to allow counsel to correct any defects in
the opposition.
Nine days before the scheduled hearing, on November 10, 2020, Villasenor filed
his opposition to the motion, along with declarations from Villasenor and his attorney and
other evidence. The opposition contained two substantive argument sections. The first
section was entitled, “[Palm Terrace] fails to prove the nonexistence of a tria[ble] issue of
material fact as to [Villasenor’s] claims regarding [Palm Terrace’s] neglect, and [the]
decedent’s injury and ultimate death.” (Boldface and capitalization omitted.) In that
section, Villasenor argued that Palm Terrace had a heightened standard of care because it
was aware upon the decedent’s admission that he was at high risk of developing pressure
ulcers and because he required assistance “with toileting functions and ambulation.”
Villasenor argued that the allegations in his complaint and the declaration of his expert,
Dr. Marvin Pietruszka, (which he had never filed) created a triable issue of material fact
1 At the hearing, the trial court mistakenly stated that the due dates would be reset
for November 29, 2020, and not the new hearing date of November 19, 2020.
4
as to whether Palm Terrace breached the standard of care.2 That section of Villasenor’s
opposition did not make any arguments concerning the issue of causation.
Villasenor next argued that Palm Terrace’s expert declaration was deficient.
Villasenor claimed that Palm Terrace had filed an expert declaration from Dr. Karl E.
Steinberg, which Villasenor argued contained no evidentiary value. (Palm Terrace did
not file a declaration from Steinberg to support this motion.) Villasenor argued that
Steinberg’s declaration was insufficient to carry Palm Terrace’s burden of demonstrating
that Palm Terrace had met the applicable standard of care.
Two days after filing the opposition, Villasenor filed the declaration of Pietruszka,
a medical doctor specializing in anatomic and clinical pathology, occupational medicine,
and toxicology. Pietruszka identified the medical records he had reviewed, including
those from Palm Terrace. Villasenor informed Pietruszka that Palm Terrace had released
his father with a bedsore that Villasenor noticed postdischarge, which Palm Terrace did
not document in the decedent’s medical records. Pietruszka opined: “Palm Terrace was
responsible for the care of [the decedent] when the sore developed. Their failure to
adhere to the standard of care and take necessary precautionary measures caused the
sores and allowed them to worsen. [Palm Terrace’s] failure to chart or treat [the
decedent’s] sores, and discharge him with pressure ulcers was a substantial factor in
causing his decline and death.”
2 In the introduction section of the opposition, Villasenor stated: Palm Terrace
“seeks summary judgment based upon their purported adherence to the ‘standard of care.’
[Palm Terrace] has not made the requisite showing to obtain an order granting its motion
for summary judgment.”
5
The court on its own motion postponed the hearing to the following week. The
day before the rescheduled hearing date, Villasenor filed a “corrected declaration” by
Pietruszka. (Boldface and capitalization omitted.) The amended declaration was filed
after the trial court had issued its tentative ruling on the summary judgment motion. The
tentative ruling is not included in the record on appeal.
Counsel for both parties appeared at the hearing the next day. The trial court
initially indicated that it was prepared to hear oral argument because Villasenor had
requested it. Defense counsel stated that he had not received notice of such a request
from plaintiff’s counsel. Plaintiff’s counsel responded that her office had provided notice
by contacting the court. She also indicated that she believed that her office notified
defense counsel. Defense counsel reiterated that he had not received notice. The trial
court ruled that Villasenor had waived oral argument by not providing defense counsel
with the requisite notice concerning argument. The trial court therefore concluded that
the tentative ruling would become the court’s final ruling.
Plaintiff’s counsel asked the court if it would be amenable to reconsidering its
ruling in light of the amended declaration of Pietruszka, which had been filed the
previous day. According to plaintiff’s counsel, the amended declaration was filed to
“address[] some of the deficiencies that [the trial judge] found within the tentative
ruling.” The trial court explained that it would not consider the additional documentation
because it had not been timely filed, and plaintiff’s counsel had over nine months to
respond to the motion.
6
The trial court granted the motion. Looking at the decedent’s death certificate, the
amount of time that had passed between the decedent’s discharge from Palm Terrace and
his death, and Wachtel’s expert opinion based on a reasonable degree of medical
probability that Palm Terrace had not caused the death, the court concluded that Palm
Terrace had produced sufficient evidence to carry its burden of demonstrating that its
negligence had not caused the decedent’s death and thus shifted the burden to Villasenor.
The court concluded that Villasenor “failed to produce sufficient evidence showing a
triable issue of fact on the issue of causation.” The court reasoned that Pietruszka’s only
proffered opinion on causation was conclusory and not supported by explanation or
reasoning, and Pietruszka did not state “that the pressure sore was the cause of death
within a ‘reasonable medical probability.’” The court cited Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings) for the
proposition that conclusory expert opinions not based on reasoned explanation have no
evidentiary value.
On December 3, 2020, Villasenor filed a motion for reconsideration, arguing that
Pietruszka’s original declaration created a material issue of fact on the issue of causation
and that the court should consider Pietruszka’s amended declaration containing new facts.
While the reconsideration motion was pending, on December 15, 2020, the court
entered judgment in favor of Palm Terrace. One week later, on December 22, 2020,
notice of entry of judgment was filed and served.
7
One week later, the court held a hearing on the motion for reconsideration. The
court denied the motion, concluding that it did not have jurisdiction to grant the motion
after judgment was entered. The court concluded in the alternative that Palm Terrace had
not demonstrated new facts, new law, or a change in circumstances warranting relief
under Code of Civil Procedure section 1008. (Unlabeled statutory references are to the
Code of Civil Procedure.)
Villasenor moved for a new trial under section 657 and to vacate the judgment
under section 663. The trial court denied the motions.
STANDARD OF REVIEW
The trial court may grant summary judgment if there is no triable issue of material
fact and the issues raised by the pleadings may be decided as a matter of law. (§ 437c,
subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving
defendant must show that one or more elements of the challenged cause of action cannot
be established or that there is a complete defense to the cause of action. (§ 437c, subd.
(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)
Once the moving defendant has carried its initial burden, the burden shifts to the
plaintiff to show a triable issue of material fact with respect to the cause of action or
defense. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must
consider all of the evidence and the reasonable inferences from it in the light most
favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of fact to find the
8
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Id. at p. 850.)
We review summary judgment orders de novo and apply the same legal standard
as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We
independently examine the record to determine whether there are triable issues of
material fact and whether the moving party is entitled to summary judgment as a matter
of law. (Ibid.) “‘While we must liberally construe plaintiff’s showing and resolve any
doubts about the propriety of a summary judgment in plaintiff’s favor, plaintiff’s
evidence remains subject to careful scrutiny.’” (Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 732-733.)
DISCUSSION
A. Oral Argument for Summary Judgment Motion
Villasenor appears to argue that the trial court erred by not allowing him to present
oral argument at the hearing on the summary judgment motion. The argument is not
supported by any legal authority or analysis, so it is forfeited. (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 161 (United Grand).) In any event,
the argument fails on the merits.
Local rule 3316 of the Superior Court of Riverside County, as adopted according
to the authority granted under Rule 3.1308 of the California Rules of Court, provides that
tentative rulings “may issue” on civil law and motion matters. (Super. Ct. Riverside
County, Local Rules, rule 3316(A).) “The tentative ruling shall become the ruling of the
9
Court unless, by 4:30 p.m. on the court day before the scheduled hearing, a party gives
notice of intent to appear to all parties and the court.” (Super. Ct. Riverside County,
Local Rules, rule 3316(B).)
The trial court found that Villasenor failed to comply with the local rule by failing
to notify defense counsel of his intent to appear and to present oral argument. Villasenor
did not submit any evidence to the contrary. Moreover, Villasenor does not contend that
the trial court failed to comply with the local rule. Given Villasenor’s counsel’s failure to
comply with the local rule, we conclude that the trial court did not err by declining to
allow oral argument.
B. Palm Terrace’s Initial Burden
Villasenor argues that Palm Terrace failed to carry its initial burden of
demonstrating the nonexistence of a triable issue of material fact on the issue of
causation. In support of that argument on appeal, Villasenor claims that “Wachtel’s
opinion does not show that [Villasenor] cannot prove the element of causation,” and
Villasenor cites Wachtel’s declaration to demonstrate the alleged insufficiency. Palm
Terrace argues that the argument is forfeited because Villasenor did not make it in the
trial court, which Villasenor disputes. We agree with Palm Terrace. Villasenor forfeited
the argument by failing to raise it in the trial court.
The only substantive arguments Villasenor made in his opposition in the trial court
were that Palm Terrace failed to carry its burden of demonstrating the nonexistence of a
material issue of fact on the standard of care and that the declaration from Palm Terrace’s
10
nonexistent expert, Steinberg, was deficient. Aside from those substantive arguments,
Villasenor made two conclusory statements in the opposition concerning Palm Terrace’s
failure to carry its initial burden on the issue of causation, but those conclusory
statements were unsupported by legal argument or analysis.
First, Villasenor asserted in the section outlining the standard of review: “Here,
[Palm Terrace] has not alleged sufficient facts to carry the burden, to show that their
neglect, and omissions were not the cause or a substantial factor which caused [the
decedent’s] death.” Villasenor cited paragraphs three through 21 of his expert’s
declaration to support that proposition. Villasenor did not provide any argument
explaining how Palm Terrace’s evidence was insufficient to the carry its initial burden on
the issue of causation.
Second, Villasenor argued that Palm Terrace had “not met its burden of showing
that no triable issue of material fact exists as to any of [Villasenor’s] claims.” But that
statement was not supported by any citation to the record or legal analysis.
Villasenor did not otherwise argue or demonstrate through citations to the record
or legal analysis how Wachtel’s expert opinion on the issue of causation was insufficient
to carry Palm Terrace’s initial burden. In fact, Villasenor only mentioned Wachtel once
in the opposition. Villasenor claimed that “Wachtel’s deliberate omission of critical facts
from the record used as the basis for his opinion renders his testimony unreliable and an
improper basis for summary judgment.” That conclusory statement was not supported by
any citation to the record.
11
Aside from that singular reference to Wachtel, Villasenor devoted his opposition
to attacking the sufficiency of the nonexistent declaration of Steinberg. As Palm Terrace
correctly points out on appeal, Palm Terrace relied on the expert opinion of Wachtel, not
that of Steinberg. Villasenor does not offer any explanation for the erroneous references
to and argument he made about Steinberg in his opposition to the summary judgment
motion on the issue of causation.3
In sum, Villasenor failed to argue in the trial court that Wachtel’s declaration was
insufficient to carry Palm Terrace’s initial burden of demonstrating that there were no
triable issues of fact as to causation. Moreover, Villasenor’s conclusory statements in the
opposition that Palm Terrace failed to carry its initial burden are insufficient to preserve
the argument on appeal because Villasenor did not develop the argument in the trial
court. (See Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1125
(Henderson).) We decline to consider this fact-intensive argument for the first time on
appeal. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 567;
Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 780 (Fernandez).)
C. Plaintiff’s Expert’s Initial Declaration
Villasenor argues that the trial court erred by concluding that he failed to carry his
burden of demonstrating a triable issue of material fact as to causation. He contends that
Pietruszka’s initial declaration was sufficient and that the trial court erred by concluding
3 It is possible that Palm Terrace filed a declaration by Steinberg in support of its
summary judgment motion on breach of the standard of care. However, that motion and
its supporting evidence are not included in the record on appeal.
12
otherwise. Villasenor did not develop that argument in the trial court either, so it too is
forfeited. (Henderson, supra, 40 Cal.App.5th at p. 1125.) Citing 18 paragraphs of
Pietruszka’s declaration and 10 paragraphs of his own declaration, Villasenor argued in
one sentence: “Further there is a material issue of fact as to whether [Palm Terrace’s]
omission and failure to treat the sores on [the decedent’s] buttocks was a substantial
factor in his demise.” That conclusory statement is not sufficient to preserve the issue for
appeal.
In any event, the argument also lacks merit. Villasenor contends that Pietruszka’s
initial declaration was sufficient to create a triable issue of fact when the declaration is
properly viewed in the light most favorable to him. We disagree.
In actions arising from medical negligence, a plaintiff must show that the
defendant’s “breach of the standard of care was the cause, within a reasonable medical
probability, of [the] injury.” (Bushling v. Fremont Medical Center (2004) 117
Cal.App.4th 493, 509; Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 247
[causation “‘must be proven within a reasonable medical probability based on competent
expert testimony, i.e., something more than a “50-50 possibility”’”].) “If an expert
provides an opinion in support of a motion for summary judgment, he or she must
provide the facts upon which the expert’s conclusions are based.” (Doe v. Good
Samaritan Hospital (2018) 23 Cal.App.5th 653, 662 (Doe).) When an expert renders an
opinion without providing a reasoned explanation of why the underlying facts lead to the
ultimate conclusion, the opinion “‘has no evidentiary value because an expert opinion is
13
worth no more than the reasons and facts on which it is based.’” (Brown v. Ransweiler
(2009) 171 Cal.App.4th 516, 530 (Brown).) Conclusory assertions are not sufficient to
defeat summary judgment. (Ibid.)
Pietruszka’s initial declaration asserted that Palm Terrace’s “failure to chart or
treat Decedent’s sores, and discharge him with pressure ulcers was a substantial factor in
causing his decline and death.” Pietruszka reached that conclusion as to the ultimate
issue in dispute—namely, whether Palm Terrace’s negligence caused the decedent’s
death—without providing any reasoned explanation as to why or how the underlying
facts led to that conclusion. The lack of reasoned explanation amounts to “the very
definition of a ‘purely conclusory’ opinion.” (Fernandez, supra, 31 Cal.App.5th at
p. 782.) Pietruszka did not explain how pressure sores in general can contribute to or
cause death, let alone explain how the decedent’s pressure sores caused his death.
Moreover, Pietruszka did not even acknowledge the causes of death listed on the death
certificate, let alone explain how the listed causes of death were consistent with his
conclusion that pressure sores actually caused the decedent’s death. Because Pietruszka
did not provide any reasoned explanation or basis for his opinion on the cause of the
decedent’s death, Pietruszka’s opinion on the issue had no evidentiary value. (See
Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 229
(Alexander) [“Without at least some minimal basis, explanation, or reasoning, Dr.
Boggeln’s conclusions as to causation in his May declaration had no evidentiary value”].)
14
Villasenor’s arguments to the contrary are unavailing. Villasenor argues that
Pietruszka “clearly state[d] that the breach of care and the resulting conditions created by
[Palm Terrace] ultimately contributed to [the decedent’s] death” because Pietruszka
documented “the pressure ulcers that were not charted but identified as the basis for the
infection that was developed as documented by the lab work that resulted in the
[decedent’s] death.” This amounts to nothing more than a conclusory assertion about the
sufficiency of Pietruszka’s declaration. Villasenor fails to demonstrate how his assertions
are reasonable inferences drawn from Pietruszka’s declaration, even when the declaration
is viewed in the light most favorable to him.
The argument also mischaracterizes the record. Pietruszka’s initial declaration
never stated that the pressure sores caused an infection that caused the decedent’s death,
as demonstrated by some unspecified lab work. Instead, Pietruszka stated, without
explanation, that Palm Terrace’s “failure to chart or treat [the d]ecedent’s sores, and
discharge him with pressure ulcers was a substantial factor in causing his decline and
death.”
In addition, Villasenor misquotes Pietruszka’s opinion on causation as follows:
“A failure to chart, and a failure to disclose the sore put the patient at risk for sores and
infection which ultimately contributed to his death.” (Boldface and underlining omitted.)
That quote does not appear on the cited page of Pietruszka’s initial declaration or
anywhere else in that declaration, as best we can determine. Villasenor also inaccurately
15
claims that Pietruszka stated his opinion to a reasonable degree of medical certainty,
which Pietruszka did not do.
Pietruszka’s declaration was the only evidence that Villasenor produced to carry
his burden of demonstrating the existence of a triable issue of fact as to causation.
Viewing the declaration in the light most favorable to Villasenor, we conclude that
Villasenor failed to carry his burden on this issue. (Kelley v. Trunk (1998) 66
Cal.App.4th 519, 524-525 [summary judgment standard “not satisfied by laconic expert
declarations which provide only an ultimate opinion, unsupported by reasoned
explanation”].) We consequently conclude that the trial court properly granted Palm
Terrace’s motion for summary judgment on the issue of causation.
D. Plaintiff’s Expert’s Amended Declaration
Villasenor argues that the trial court deprived him of his “substantive rights” by
failing to consider Pietruszka’s amended declaration, which Villasenor filed the day
before the hearing and after the trial court issued its tentative ruling. He argues that the
court should have continued the hearing in order to accept additional evidence because of
the gravity of the substantive issue involved, namely, “causation of death.” Villasenor
does not support those arguments with any legal authority or analysis. He consequently
has forfeited them. (United Grand, supra, 36 Cal.App.5th at p. 161.)
E. Motion for Reconsideration
Villasenor argues that the trial court erred by denying his motion for
reconsideration because it presented new and different circumstances sufficient to qualify
16
for reconsideration under section 1008. The argument lacks merit because it fails to
address the trial court’s first ground for denying the motion, namely, that the court lacked
jurisdiction to grant it after entering judgment. Villasenor acknowledges that “the motion
for reconsideration was not denied on the merits” but does not challenge the jurisdictional
ruling on appeal. In any event, the jurisdictional ruling was correct. The court lost
jurisdiction to grant reconsideration when it entered judgment. (See APRI Ins. Co. S.A. v.
Superior Court (1999) 76 Cal.App.4th 176, 182 [“Once the trial court has entered
judgment, it is without power to grant reconsideration. The fact that a motion for
reconsideration may have been pending when judgment was entered does not restore this
power to the trial court”].)
F. Motion for New Trial
Villasenor moved for a new trial on the grounds of irregularity in the proceedings,
insufficiency of the evidence, and errors in law. (§ 657, subds. (1), (6), & (7).) He
argues that the trial court erred by denying his motion for a new trial on those grounds.
His arguments lack merit.
Section 657, subdivision (1), permits the trial court to grant a new trial based on an
“[i]rregularity 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.”
The trial court may grant a new trial based on insufficient evidence supporting the
judgment under section 657, subdivision (6), and based on an error of law under
section 657, subdivision (7). “An order granting summary judgment is properly
17
challenged by a motion for a new trial,” “‘even though, strictly speaking, “summary
judgment . . . is a determination that there shall be no trial at all.”’” (Brewer v.
Remington (2020) 46 Cal.App.5th 14, 23, quoting Aguilar, supra, 25 Cal.4th at p. 858.)
“A trial court has broad discretion in ruling on a new trial motion, and the court’s
exercise of discretion is accorded great deference on appeal.” (Fassberg Construction
Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) To
the extent the order denying a new trial motion after summary judgment “relies on the
resolution of a question of law, including the existence of triable issues of fact, we
examine the matter de novo.” (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th
1500, 1505.)
First, Villasenor argues that under subdivision (1) of section 657 the judgment
should be reversed because the trial court’s “order excluding the declaration [of
Pietruszka] was an improper order of the court.” (Boldface and initial capitalization
omitted.) In support of that contention, he argues that the trial court’s conclusion that
Pietruszka’s initial declaration did not carry Villasenor’s burden of demonstrating a
triable issue of material fact on causation amounted to an irregularity of the proceedings.
He also argues that the trial court should have granted reconsideration because
Pietruszka’s amended declaration presented “new and different circumstances.” For
reasons we have already explained, the arguments are meritless. The trial court’s rulings
were not erroneous and therefore did not constitute an irregularity in the proceedings.
18
Second, Villasenor argues that the trial court erred by denying his new trial motion
under section 657, subdivision (6), because there is insufficient evidence to support the
judgment. In support of that argument, he contends that Palm Terrace did not carry its
initial burden on the issue of causation. He asserts that “Wachtel’s opinion does not
show that [Villasenor] cannot prove the element of causation.” Villasenor does not
support the argument with any legal authority or analysis explaining how this ground for
a new trial motion applies in the context of summary judgment. The argument lacks
merit in any event. Wachtel opined to “a reasonable degree of medical probability” that
the decedent’s death was caused by “pneumonia with accompanying sepsis which
ultimately resulted in cardiorespiratory arrest” and not by a skin ulcer. That constitutes
sufficient evidence to support granting the motion for summary judgment.
Third, Villasenor argues that the trial court erred by denying his new trial motion
under subdivision (7) of section 657 because he claims that the trial court applied the
wrong legal standard to analyzing Pietruszka’s declaration and that Pietruszka’s opinion
created a triable issue of material fact on causation. Villasenor argues that the trial court
improperly relied on Jennings, supra, 114 Cal.App.4th 1108, for the following
proposition: “‘[W]hen an expert’s opinion is purely conclusory because unaccompanied
by a reasoned explanation connecting the factual predicates to the ultimate conclusion,
that opinion has no evidentiary value because an expert opinion is worth no more than the
reasons upon which it rests.’” Villasenor claims that this standard does not apply at the
19
summary judgment stage and that Jennings is inapplicable because it involved an appeal
following a jury trial. Villasenor fails to explain why the procedural distinction matters.
Moreover, an expert opinion filed at the summary judgment stage also contains no
evidentiary value if it is purely conclusory and fails to connect the underlying factual
predicates to the ultimate conclusion. (See, e.g., Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 155; Fernandez, supra, 31 Cal.App.5th
at p. 781; Alexander, supra, 23 Cal.App.5th at p. 229; Doe, supra, 23 Cal.App.5th at
p. 662; Brown, supra, 171 Cal.App.4th at p. 530.) None of the cases Villasenor cites
undermines that legal proposition.
Instead, the cases Villasenor cites stand for the distinct and equally applicable
principles that in the context of a summary judgment motion, “we liberally construe the
declarations for the [nonmoving party’s] experts” (Powell v. Kleinman (2007) 151
Cal.App.4th 112, 125-126), and that Villasenor “is entitled to all favorable inferences that
may reasonably be derived from [Pietruszka’s] declaration” (Hanson v. Grode (1999) 76
Cal.App.4th 601, 607; Zavala v. Arce (1997) 58 Cal.App.4th 915, 935; Branco v. Kearny
Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189; see also Garrett v. Howmedica
Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 [“a reasoned explanation required in
an expert declaration filed in opposition to a summary judgment motion need not be as
detailed or extensive as that required in expert testimony presented in support of a
summary judgment motion or at trial”]). “But these principles in no way eliminate the
need for some form of ‘reasoned explanation,’ and it remains the case that any inferences
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must ‘reasonably be derived from’ the declaration.” (Fernandez, supra, 31 Cal.App.5th
at p. 782.) Courts may not “‘relax the rules of evidence in determining the admissibility
of an opposing declaration. Only admissible evidence is liberally construed in deciding
whether there is a triable issue.’” (Id. at p. 779.)
Thus, the trial court did not commit an error in law by concluding that Pietruszka’s
opinion on the issue of causation had no evidentiary value because it was not supported
by a reasoned explanation connecting the underlying facts to the ultimate conclusion.
The trial court’s application of that rule does not demonstrate that the court did not
liberally construe Pietruszka’s declaration or did not view it in a light favorable to
Villasenor. Moreover, Villasenor does not suggest what inferences the trial court failed
to draw from the declaration. Viewing Pietruszka’s declaration in the light most
favorable to Villasenor, we see no reasonable inferences that would connect the facts to
Pietruszka’s ultimate conclusion. Accordingly, the trial court did not err by rejecting this
ground for Villasenor’s motion for a new trial.
Fourth, Villasenor argues that the trial court should have granted the new trial
motion because the court committed an error of law by denying the motion for
reconsideration. Villasenor does not explain what error he believes the trial court
committed and does not support the assertion with any legal argument or analysis. The
argument is consequently forfeited. (United Grand, supra, 36 Cal.App.5th at p. 161.)
For all of these reasons, we conclude that the trial court did not err by denying
Villasenor’s motion for new trial.
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G. Motion to Vacate the Judgment
Villasenor argues that the trial court erred by denying his motion to vacate the
judgment. In the trial court, Villasenor moved to vacate the judgment under section 663.
His opening brief on appeal does not mention section 663 and instead erroneously refers
to the motion to vacate as having been brought under section 657, which governs new
trial motions. Thus, Villasenor does not raise any arguments concerning the motion to
vacate that he actually filed, so there are no arguments for us to address. In any event, a
motion to vacate under section 663 is not a proper procedural vehicle for seeking to
vacate a summary judgment and to restore the action to the trial calendar (Forman v.
Knapp Press (1985) 173 Cal.App.3d 200, 202-203), which is the relief Villasenor sought.
The trial court therefore did not err by denying Villasenor’s motion to vacate under
section 663.
DISPOSITION
The judgment is affirmed. Palm Terrace shall recover its costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
RAPHAEL
J.
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