Filed 4/16/18; partial pub. order 5/11/18 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER ALEXANDER et al., D071001
Plaintiffs and Appellants,
v. (Super. Ct. No.
37-2014-00016257-CU-MM-CTL)
SCRIPPS MEMORIAL HOSPITAL LA
JOLLA et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of San Diego County, Randa
Trapp, Judge. Affirmed in part; reversed in part.
Benjamin Cheeks and Christopher M. Alexander for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson for Defendants and
Respondents Gustavo Lugo, Jr., Preeti Mehta, Donald J. Ritt and Marie P. Shieh; Creason
& Aarvig and James A. Creason for Defendant and Appellant Gustavo Lugo, Jr.;
LaFollette, Johnson, Dehaas, Fesler & Ames and James J. Wallace II for Defendant and
Respondent Preeti Mehta; Neil Dymott and Robert W. Frank for Defendant and
Respondent Donald J. Ritt; Hegeler & Anderson and Barton H. Hegeler for Defendant
and Respondent Marie P. Shieh.
Higgs Fletcher & Mack, John Morris, William A. Low, Kathryn A. Martin and
Rachel E. Moffitt for Defendants and Respondents Scripps Memorial Hospital La Jolla,
Shawn Evans, Ayana Boyd-King, Ernest Pund, Charles Ettari and Karen Knight.
This case raises issues concerning the legal obligations imposed on health care
providers when a patient's health care directives conflict with the providers' opinions that
the requested care would be medically ineffective and may cause harm. Elizabeth
Alexander, a 70-year-old woman suffering from end-stage terminal pancreatic cancer,
died four days after she was transferred from a skilled nursing facility to Scripps
Memorial Hospital La Jolla (Scripps). Elizabeth had an advance health care directive
stating she wanted all measures taken to prolong her life. Defendants declined to provide
Elizabeth with certain advanced life support measures on the basis that such measures
would have been ineffective and caused her to suffer further harm.
After Elizabeth's death, her estate (Estate) and children, Clenton Alexander,
Christopher Alexander, and Jacquelyn McDermet (together, Plaintiffs),1 sued Scripps
and numerous medical professionals, alleging Elizabeth died after defendants failed to
provide the life-sustaining treatment and comfort care requested in her advance health
1 For purposes of clarity, we refer to Elizabeth Alexander, Clenton Alexander, and
Christopher Alexander by their first names.
2
care directive. The trial court resolved Plaintiffs' claims in favor of Defendants either by
sustaining demurrers or granting summary judgment. For reasons we shall explain, we
affirm except for an award of expert fees to one physician defendant against Christopher
and McDermet. We also deny Plaintiffs' request for judicial notice.2
OVERVIEW
Plaintiffs sued Scripps and nine medical professionals involved in Elizabeth's care
and treatment. Four of the physician defendants were directly involved in Elizabeth's
care: Dr. Donald Ritt (palliative care), Dr. Gustavo Lugo (hospitalist), Dr. Preeti Mehta
(internal medicine), and Dr. Marie Shieh (oncologist). The remaining physician
defendants were members of Scripps's Appropriate Care Committee, a team of volunteer
physicians who provide recommendations as to whether certain treatment is appropriate
for a patient (Appropriate Care Committee). The members of the Appropriate Care
Committee were Dr. Shawn Evans (chief of staff at Scripps), Dr. Ayana Boyd-King, Dr.
Ernest Pund, and Dr. Charles Ettari. As a treating physician, Dr. Lugo also participated
in the Appropriate Care Committee for Elizabeth's case. Plaintiffs also sued Karen
2 Plaintiffs requested we take judicial notice of (1) a California Law Revision
Commission recommendation regarding "Health Care Decisions for Adults Without
Decisionmaking Capacity," and (2) a document from the California Medical Association,
entitled "Legal and Ethical Principles Applicable to Requests for Medically Ineffective or
Non-Beneficial Treatment." These documents were not presented to the trial court.
Plaintiffs offer no explanation for their failure to request judicial notice in the trial court
and we discern no "exceptional circumstances" that would justify deviating from the
general rule that reviewing courts do not take judicial notice of documents not presented
to the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434,
444, fn. 3.)
3
Knight, a nurse who helped facilitate Elizabeth's transfer to another facility based on
Christopher's request.3
After Plaintiffs filed their initial complaint, the trial court sustained several
demurrers, which led to Plaintiffs' operative fourth amended complaint. In the operative
complaint, Plaintiffs asserted claims against Defendants for violations of five statutes
within the Health Care Decisions Law (Probate Code, § 4600 et seq.),4 elder abuse,
professional negligence, wrongful death, negligent misrepresentation, and negligent
infliction of emotional distress. Many of Plaintiffs' claims were based on allegations that
Defendants did not provide Elizabeth with advanced life support measures such as
cardiopulmonary resuscitation (CPR), and adequate pain medication, nutrition and fluids.
The parties engaged in extensive discovery over a three-year period.
Defendants moved for summary judgment on Plaintiffs' claims and supported their
motions with expert declarations stating Defendants complied with the standard of care,
did not violate the Probate Code, and did not cause Elizabeth injury or death. While
these motions were pending, Plaintiffs sought to depose the Scripps Defendants and Dr.
Ritt's expert, but the trial court denied that request. Thereafter, Plaintiffs opposed
Defendants' summary judgment motions with declarations from their own expert, Dr.
Laurence Boggeln. The trial court granted Defendants' summary judgment motions.
3 We refer to Scripps; nurse Knight; and Drs. Evans, Boyd-King, Pund, and Ettari
together as the Scripps Defendants. We refer to the Scripps Defendants together with
Drs. Ritt, Lugo, Mehta, and Shieh as Defendants.
4 Undesignated statutory references are to the Probate Code.
4
These rulings were largely based on the court's decision to sustain Defendants' objections
to Dr. Boggeln's opinions on the basis that the opinions were conclusory, lacked
foundation, and the expert failed to consider critical facts, including Elizabeth's end-stage
terminal cancer. Further, the trial court found Defendants were immune from liability for
alleged violations of the Health Care Decisions Law.
After the trial court granted Defendants summary judgment, the trial court
awarded Defendants their costs, including expert fees under Code of Civil Procedure
section 998. In total, the costs amounted to approximately $160,000.
On appeal, Plaintiffs contend the trial court erred in: (1) sustaining demurrers to
their elder abuse claims; (2) refusing their request to depose a defense expert; (3)
sustaining objections to their expert's declarations and overruling their objections to
defense expert declarations; (4) finding Drs. Evans, Boyd-King, Ettari, and Pund
(Appropriate Care Committee) did not owe Elizabeth a duty of care; (5) finding there was
no triable issue of fact on their negligent misrepresentation claim; (6) finding Defendants
were immune from liability and did not violate provisions of the Health Care Decisions
Law; (7) denying their motion to reconsider the summary judgment rulings in favor of the
Scripps Defendants and Dr. Ritt; (8) improperly awarding Defendants costs and expert
fees; and (9) delaying depositions until the complaint was amended to name all of
Elizabeth's known heirs.
We conclude the trial court properly sustained Defendants' demurrers to Plaintiffs'
causes of action for elder abuse because Plaintiffs did not allege Defendants' conduct was
sufficiently egregious to constitute elder abuse within meaning of the Elder Abuse and
5
Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst. Code, § 15600 et
seq.), and Plaintiffs did not meet the pleading requirements for their elder abuse claims.
Plaintiffs' allegations, at best, stated a claim for professional negligence.
We also conclude the trial court properly granted Defendants summary judgment.
On Plaintiffs' professional negligence and wrongful death claims, they could not defeat
summary judgment because their expert did not set forth sufficient reasoning or
explanation for his opinion that Defendants' breaches of the standard of care and
violations of the Probate Code caused Elizabeth injury or death. Plaintiffs' negligent
misrepresentation claims failed because the statements they relied upon were not positive
assertions by Defendants, and Plaintiffs did not justifiably rely on Defendants' statements.
Concerning Plaintiffs' causes of action for Probate Code violations, we find
Defendants were immune from liability under section 4740 for alleged violations of
sections 4730 concerning communication of health care decisions; 4732 concerning
recordation of information about a patient's capacity; 4736 concerning a health care
provider's or institution's duties upon declining to comply with a patient's health care
instructions; and 4742, subdivision (b) concerning liability for concealing or coercing or
fraudulently inducing an individual to change an advance health care directive. On
Plaintiffs' remaining Probate Code argument, contending the Scripps Defendants and Dr.
Ritt violated section 4731, subdivision (a) by not requesting and maintaining Elizabeth's
advance health care directive, we conclude section 4731 does not apply to the Scripps
Defendants because they were not supervising health care providers within the meaning
6
of the Health Care Decisions Law and, as to Dr. Ritt, Plaintiffs did not raise a triable
issue of fact concerning whether Dr. Ritt intentionally violated the statute.
Lastly, we conclude the trial court erred in holding Christopher and McDermet
responsible for Dr. Ritt's expert fees under Code of Civil Procedure section 998 because
Dr. Ritt did not serve them with offers to compromise. Accordingly, we reverse the
judgment in favor of Dr. Ritt to the extent it awards those fees. In all other respects, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Elizabeth's Hospitalization
In June 2012, a doctor informed Elizabeth she had stage four pancreatic cancer
and there was no cure. Elizabeth's options included palliative chemotherapy, supportive
care, or hospice. She stated she wanted to continue fighting and elected to undergo
palliative chemotherapy. Elizabeth's cancer was very aggressive and had spread to her
liver and bones.
In January 2013, Elizabeth was admitted to Emeritus Skilled Nursing Facility
(Emeritus) because she could no longer care for herself. Elizabeth had an advance health
care directive in which she elected to have all measures taken to prolong her life.
Elizabeth designated Christopher as the person who could make health care decisions for
her in the event she was unable to make those decisions. Christopher completed a
Physician Orders for Life Sustaining Treatment (POLST) form, indicating he wanted
Elizabeth to be "full code," meaning she would receive CPR and full medical treatment.
7
On February 15, 2013, Elizabeth went to the emergency room at Scripps for
placement of a feeding tube because she was malnourished. She was awake and alert, but
was weak and had difficulty speaking. After a physician placed the feeding tube,
Elizabeth returned to Emeritus.
On February 17, 2013, Dr. Aboo Nasar, the medical director of Emeritus,
evaluated Elizabeth because her health had significantly deteriorated since she was first
admitted to the facility. Elizabeth could not communicate with Dr. Nasar and was
malnourished and weak. Dr. Nasar described Elizabeth as "quite terminal" and expected
her to die within days. Dr. Nasar discussed Elizabeth's condition with Christopher, who
stated he wanted everything done to prolong Elizabeth's life. Dr. Nasar believed treating
Elizabeth as "full code" would cause her additional pain and suffering.
On February 18, 2013, Dr. Nasar discharged Elizabeth to Scripps for evaluation.
He did not expect her to return to Emeritus as he believed her death was imminent. A
licensed vocational nurse filled out a nursing home discharge form for Elizabeth,
indicating (apparently in error) Elizabeth did not "have a condition or chronic disease that
may result in a life expectancy of less than 6 months." That designation required
physician documentation, but there was no evidence that a physician agreed with the
nurse's determination of Elizabeth's prognosis.
Elizabeth presented to the emergency room at Scripps via ambulance. Dr.
Christopher Wiesner saw Elizabeth in the emergency room and noted she was alert, but
minimally verbally responsive. Christopher informed Dr. Wiesner that Elizabeth wished
to have all medical care, including full resuscitation and a feeding tube. Scripps had a
8
copy of Elizabeth's POLST. Additionally, Christopher informed Dr. Wiesner that
Elizabeth had an advance health care directive. In the emergency room, Elizabeth
received hydromorphone for pain and saline.
Dr. Wiesner admitted Elizabeth to the hospital for consultation with oncology or
palliative care. A nurse noted in Elizabeth's medical record that Elizabeth had an
advance health care directive and that a copy of it was in her chart.
Dr. Lugo, the hospitalist, saw Elizabeth when she was admitted to Scripps on
February 18, 2013. He noted she looked near terminal and emaciated with severe and
obvious signs of malnutrition. Dr. Lugo's treatment plan stated comfort measures were
the primary goal to ease Elizabeth's suffering. Although Dr. Lugo determined tube
feedings would be futile and would prolong Elizabeth's suffering, he ordered this care be
provided.
Dr. Shieh, a consulting oncologist, evaluated Elizabeth on February 18, 2013. Dr.
Shieh noted Elizabeth was "post palliative chemotherapy and radiation. She has now had
a progressive decline in her functional status, and there [was] evidence of moderate
progression of disease." Dr. Shieh spoke with Christopher, who informed her Elizabeth
was a fighter and would want to continue any possible available therapies. Dr. Shieh
informed Christopher that "given [Elizabeth's] poor performance status, and her liver
failure, . . . there really [were] no other safe therapies at [that] time."
Dr. Ritt, a member of the palliative care team, also evaluated Elizabeth on
February 18, 2013. Dr. Ritt noted Elizabeth was "clearly an individual who should not
undergo aggressive resuscitation[;] cardiac compression, and/or intubation would not be
9
appropriate. She is frail, debilitated, and has some metastasis that is extensive." Dr. Ritt
prepared orders for tube feedings and pain medications. He also entered a do not
resuscitate (DNR) order, but did not tell Christopher of his action. However, according
to Dr. Ritt, he had a conversation with Christopher on February 18, 2013, that relayed the
substance of the DNR order. Specifically, Dr. Ritt explained that maintaining Elizabeth
at full code status, including providing CPR and other similar measures, would cause her
to suffer additional harm and any care that would cause further harm and suffering could
not be performed.
Dr. Ritt spoke with McDermet about a conversation he had with Christopher about
Elizabeth's code status. During the conversation with McDermet, Dr. Ritt informed her
that he did not agree with the family's desire to engage in life-prolonging measures
because Elizabeth was terminally ill.
Dr. Ritt contacted Dr. Evans, chief of staff at Scripps, and initiated steps to involve
Scripps's Appropriate Care Committee, comprised of Drs. Evans, Pund, Ettari, Boyd-
King and Lugo, the treating physician, in Elizabeth's case.
On February 19, 2013, Elizabeth received a fentanyl patch for her pain. She was
also cleared for transfer back to Emeritus as soon as possible with her feeding tube in
place. However, later that day, Dr. Ritt placed a hold on Elizabeth's transfer based on
information from nurse Knight that Emeritus would not accept the patient back at that
time. Emeritus would not accept Elizabeth's transfer if her family wanted her to have a
full resuscitation or full code order in place. Christopher was not aware Dr. Ritt had
placed a hold on Elizabeth's transfer.
10
The Appropriate Care Committee met on February 20, 2013, to discuss the
incongruence between Elizabeth's family's wishes for her to be "full code" status and the
recommendations of treating doctors that such treatment would be medically ineffective
and may cause harm. The Appropriate Care Committee reviewed Elizabeth's medical
records, including opinions from Drs. Wiesner, Shieh, Ritt, and Lugo that Elizabeth
should not undergo advanced life support measures and CPR because those efforts would
be futile. The committee noted Elizabeth's condition had deteriorated while in the
hospital. The committee concluded that appropriate care included preserving Elizabeth's
mental and physical comfort, such as providing oxygen, IV fluids, pain medications, and
palliative care. Additionally, the Appropriate Care Committee was aware of Elizabeth's
family's preference to continue tube feeding and did not object to it because it was not
necessarily harmful to her. The Appropriate Care Committee recommended against
advanced life support measures (i.e., CPR, intubation, and defibrillation) because those
measures would have been ineffective.
Members of the Appropriate Care Committee spoke with Christopher about
Elizabeth's condition and their recommendations for appropriate care. Christopher
expressed he understood Elizabeth's death was imminent and she had no opportunity for
survival. However, Christopher maintained Elizabeth's advance health care directive
should be followed and he was not willing to endorse anything to the contrary. The
Appropriate Care Committee members explained that doctors could not embark on
ineffective care. Christopher requested Elizabeth be transferred to another facility. Thus,
11
the committee informed Christopher it would make efforts to transfer Elizabeth, provided
the transfer did not harm her.
Thereafter, Knight contacted Christopher to facilitate Elizabeth's transfer.
Christopher reiterated he did not agree with Elizabeth's DNR code status. Knight
recommended Christopher contact Elizabeth's insurance to identify a covered facility and
doctor who would accept her transfer.
On February 20, 2013, Dr. Lugo prescribed Elizabeth 1.5 milligrams of
hydromorphone every two hours, as needed for pain. Later that day, Dr. Ritt increased
Elizabeth's hydromorphone to two milligrams every two hours, as needed for pain, and
prescribed lorazepam to ease her discomfort during the dying process. Dr. Ritt did not
discuss the administration of lorazepam with Christopher.
Dr. Mehta (internal medicine) also saw Elizabeth on February 20, 2013. Dr.
Mehta did not provide Elizabeth with intravenous fluids that day because Elizabeth was
edematous, meaning she had an accumulation of excess fluid in cells, tissues, or body
cavities. Further, Dr. Mehta decreased Elizabeth's tube feedings because she determined
further nutrition was unnecessary and could be causing Elizabeth additional pain. Dr.
Mehta discussed this change with Elizabeth's family. Christopher reiterated he wanted
Elizabeth to be a full code patient.
Dr. Mehta reduced Elizabeth's hydromorphone to one milligram every two hours,
as needed for pain. Elizabeth received two milligrams of hydromorphone at 2:02 p.m.
and then one milligram at 11:47 p.m. She did not receive additional hydromorphone
between that time, but did have a continuous release fentanyl patch for pain. Dr. Mehta
12
observed Elizabeth in pain at 4:00 p.m. that day. The plan was for Elizabeth to be
discharged to Emeritus the following morning, if possible.
Dr. Ritt saw Elizabeth on February 21, 2013. Elizabeth did not receive artificial
nutrition that day. Knight was able to arrange Elizabeth's transfer back to Emeritus at
4:00 p.m. on February 21, 2013. Elizabeth died an hour and a half before her scheduled
transfer. Consistent with the Appropriate Care Committee's recommendation and the
DNR order in place, CPR was not initiated on Elizabeth. Dr. Mehta prepared a death
report on Elizabeth and listed the causes of death as cardiorespiratory arrest related to
progressive pancreatic cancer with metastasis to the liver, cancer cachexia, anemia, and
severe malnutrition.
The Lawsuit
In May 2014, Clenton, on behalf of himself and the Estate, filed an action against
Defendants, alleging 16 causes of action. In August 2015, after multiple rounds of
demurrers, Plaintiffs filed their operative fourth amended complaint, alleging violations
of the Probate Code, elder abuse, professional negligence, wrongful death, negligent
misrepresentation, and negligent infliction of emotional distress.
Between March 2013 and March 2016, the parties engaged in discovery. During
that time, Plaintiffs deposed 10 medical professionals and individuals designated as
persons most knowledgeable for Scripps. Defendants produced documents, including
medical records and billing records.
In March 2016, the Scripps Defendants and Dr. Ritt moved for summary judgment
or, in the alternative, summary adjudication. They argued Plaintiffs could not prove the
13
essential elements of negligence, including causation; there was no evidence the Scripps
Defendants and Dr. Ritt violated the Probate Code; the Scripps Defendants and Dr. Ritt
were immune from liability under the Probate Code; and Plaintiffs could not establish
negligent misrepresentation and negligent infliction of emotional distress. The Scripps
Defendants also argued the Appropriate Care Committee members did not owe Elizabeth
a duty of care. The Scripps Defendants and Dr. Ritt supported their motions with an
expert declaration from Dr. Eric Roeland regarding whether they complied with the
standard of care and contributed to Elizabeth's death or caused her injury.
In April 2016, Drs. Lugo, Mehta, and Shieh moved for summary judgment or, in
the alternative, summary adjudication. They made arguments similar to those asserted by
the Scripps Defendants and Dr. Ritt, and each defendant supported his or her motion with
an expert declaration consistent with the opinions Dr. Roeland offered.
In May 2016, Plaintiffs opposed the Scripps Defendants' and Dr. Ritt's summary
judgment or summary adjudication motions. Plaintiffs supported their opposition with a
May 2016 expert declaration from Dr. Boggeln, who opined the care and treatment
Defendants provided to Elizabeth failed to comply with the standard of care and Probate
Code, and was a substantial factor in causing Elizabeth injury and death. The Scripps
Defendants and Dr. Ritt objected to Dr. Boggeln's declaration on numerous grounds,
including that Dr. Boggeln's opinions were conclusory and lacked factual support.
In June 2016, the trial court heard arguments on the Scripps Defendants' and Dr.
Ritt's summary judgment or summary adjudication motions and their objections to Dr.
Boggeln's declaration. During the hearing, the court questioned Dr. Boggeln's opinions
14
because he provided little explanation for his conclusions and relied on a prognosis
determination from a nurse at Emeritus that was not supported with physician
documentation. Plaintiffs offered, "[t]o the extent that the Court still has concerns
regarding [Dr. Boggeln's] declaration, we're happy to submit an amended declaration to
address the Court's concerns." The trial court did not request a supplemental declaration,
and Plaintiffs did not request a continuance.
The trial court granted the Scripps Defendants' and Dr. Ritt's summary judgment
motions and sustained their objections to all of the opinions in Dr. Boggeln's declaration.
The court concluded there was no triable issue of fact on whether the Scripps Defendants
and Dr. Ritt violated the standard of care and caused Elizabeth injury or death; the
Appropriate Care Committee members did not owe Elizabeth a duty of care; the Scripps
Defendants and Dr. Ritt were immune from liability for alleged statutory violations of the
Probate Code; and there was no competent evidence to support Plaintiffs' other claims.
After the trial court granted the Scripps Defendants' and Dr. Ritt's summary
judgment motions, Plaintiffs opposed Drs. Lugo, Mehta, and Shieh's summary judgment
or summary adjudication motions and filed amended declarations from Dr. Boggeln in
support of their oppositions. Dr. Boggeln reached the same opinions as he had in his
earlier declaration. Drs. Lugo, Mehta, and Shieh objected to Dr. Boggeln's amended
declarations.
In July 2016, the trial court granted Drs. Lugo, Mehta, and Shieh's summary
judgment motions and sustained their objections to Dr. Boggeln's declarations. The trial
15
court granted Drs. Lugo, Mehta, and Shieh's summary judgment motions on the same
grounds as it had for the Scripps Defendants and Dr. Ritt.
The trial court entered judgments in favor of Defendants. After Plaintiffs' motions
to tax costs, the trial court awarded Defendants costs, totaling $160,895.92. Specifically,
the court awarded $43,302.51 to the Scripps Defendants, $28,237 to Dr. Lugo,
$32,501.22 to Dr. Mehta, $28,801.71 to Dr. Ritt, and $28,053.48 to Dr. Shieh.
DISCUSSION
I. Demurrer Rulings
A. Background
After the trial court sustained in part and overruled in part Defendants' demurrer to
Plaintiffs' second amended complaint, Plaintiffs filed a third amended complaint, alleging
12 causes of action against each Defendant. As relevant here, the trial court sustained
without leave to amend Defendants' demurrer to Plaintiffs' cause of action for elder abuse
based on neglect, and sustained with leave to amend the demurrer to a cause of action for
elder abuse based on financial abuse.
In August 2015, Plaintiffs filed the operative fourth amended complaint that
included a cause of action for financial elder abuse. The trial court sustained Defendants'
demurrer to the elder abuse cause of action without leave to amend and granted their
associated motion to strike enhanced penalties and punitive damages.
B. Standard of Review
We review an order sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of law. (Moore v.
16
Regents of University of California (1990) 51 Cal.3d 120, 125.) It "is error for a trial
court to sustain a demurrer [if] the plaintiff has stated a cause of action under any
possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) In
determining whether the pleading states a viable cause of action, we deem the factual
allegations to be true, but disregard contentions, deductions, and legal conclusions. (Hill
v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300.)
If "a demurrer is sustained without leave to amend, [we] must determine whether
there is a reasonable probability that the complaint could have been amended to cure the
defect; if so, [we] will conclude that the trial court abused its discretion by denying the
plaintiff leave to amend. [Citation.] The plaintiff bears the burden of establishing that it
could have amended the complaint to cure the defect." (Berg & Berg Enterprises, LLC v.
Boyle (2009) 178 Cal.App.4th 1020, 1035.)
C. Elder Abuse Based on Neglect and Physical Abuse
In their third amended complaint, Plaintiffs alleged Defendants committed elder
abuse by neglecting and physically abusing Elizabeth. Plaintiffs contend the trial court
erred in sustaining Defendants' demurrers to the elder abuse claim. Specifically,
Plaintiffs argue the trial court ignored and disregarded allegations in their third amended
complaint that Defendants " 'recklessly failed to provide medical care for [Elizabeth's]
physical and mental health needs' "; " 'recklessly failed to protect [Elizabeth] from health
and safety hazards' "; " 'recklessly abandoned [Elizabeth] by recklessly deserting and
willfully forsaking [Elizabeth] while they had care and custody of [her] under
circumstances in which a reasonable person would continue to provide care and
17
custody' "; and "recklessly 'held [Elizabeth's] transfer to a facility that would provide life-
sustaining treatment, administered drugs to hasten [Elizabeth's] demise without her or her
representative's consent, provided [Elizabeth] with less than 3 tablespoons of IV fluids
per day for two days and even less on the third day, withheld from [Elizabeth] any
feeding tube nutrition for a day, and failed to provide [Elizabeth] pain medications for
more than 10 hours.' " Plaintiffs argue these allegations sufficiently pleaded a claim for
elder abuse based on neglect and physical abuse under the Elder Abuse Act. We
disagree.
1. Legal Principles
"The Elder Abuse Act makes certain enhanced remedies available to a plaintiff
who proves abuse of an elder, i.e., a 'person residing in this state, 65 years of age or
older.' " (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,
404 (Carter).) "The Elder Abuse Act's heightened remedies are available only in limited
circumstances. A plaintiff must prove, by clear and convincing evidence, that a
defendant is liable for either physical abuse . . . or neglect . . . , and that the defendant
committed the abuse with 'recklessness, oppression, fraud, or malice.' " (Winn v. Pioneer
Medical Group, Inc. (2016) 63 Cal.4th 148, 156 (Winn).) The heightened remedies
available under the Elder Abuse Act include not only recovery of attorney fees and costs,
"but also exemption from the damages limitations otherwise imposed by Code of Civil
Procedure section 377.34. Unlike other actions brought by a decedent's personal
representative or successor in interest, claims under the Act allow for the recovery of
damages for predeath pain, suffering, and disfigurement." (Id. at p. 155.)
18
Abuse under the Elder Abuse Act includes physical abuse, neglect, and "[t]he
deprivation by a care custodian of goods or services that are necessary to avoid physical
harm or mental suffering." (Welf. & Inst. Code, § 15610.07.) Neglect is "[t]he negligent
failure of any person having the care or custody of an elder or a dependent adult to
exercise that degree of care that a reasonable person in a like position would exercise."
(Id., § 15610.57, subd. (a)(1).) Neglect includes "[f]ailure to provide medical care for
physical and mental health needs." (Id., § 15610.57, subd. (b)(2).)
" '[N]eglect' within the meaning of Welfare and Institutions Code section 15610.57
covers an area of misconduct distinct from 'professional negligence.' As used in the
[Elder Abuse] Act, neglect refers not to the substandard performance of medical services
but, rather, to the 'failure of those responsible for attending to the basic needs and
comforts of elderly or dependent adults, regardless of their professional standing, to carry
out their custodial obligations.' [Citation.] Thus, the statutory definition of 'neglect'
speaks not of the undertaking of medical services, but of the failure to provide medical
care." (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 (Covenant
Care).) The Elder Abuse Act does not "apply whenever a doctor treats any elderly
patient. Reading the act in such a manner would radically transform medical malpractice
liability relative to the existing scheme." (Winn, supra, 63 Cal.4th at p. 163.) "[T]he
facts constituting the neglect and establishing the causal link between the neglect and the
injury 'must be pleaded with particularity,' in accordance with the pleading rules
governing statutory claims." (Carter, supra, 198 Cal.App.4th at p. 407.)
19
2. Plaintiffs' Allegations Were Insufficient to State a Claim for Elder Abuse Based
on Neglect and Physical Abuse
Reviewing Plaintiffs' third amended complaint in light of the foregoing legal
principles, we conclude Plaintiffs did not allege Defendants did anything sufficiently
egregious to constitute neglect or physical abuse within the meaning of the Elder Abuse
Act. As we shall explain, although Plaintiffs alleged Defendants failed to facilitate
Elizabeth's transfer to another facility and withheld pain medication, nutrition, and fluids,
the third amended complaint is replete with references to the extensive medical care
Elizabeth received during her four-day hospitalization. Taken as a whole, Plaintiffs'
allegations are insufficient to state a cause of action for elder abuse within the meaning of
the Elder Abuse Act. Unlike cases in which elder abuse is properly pleaded because the
patient was abandoned or ignored for extended periods of time, here family members
disagreed with the nature of care their mother was receiving. Disagreements between
physicians and the patient or surrogate about the type of care being provided does not
give rise to an elder abuse cause of action.
We begin by analyzing Plaintiffs' specific allegations. First, Plaintiffs generally
asserted Defendants recklessly failed to provide Elizabeth medical care, recklessly failed
to protect her from health and safety hazards, and recklessly abandoned her. Plaintiffs'
general statements of recklessness are not sufficient to survive a demurrer to their elder
abuse cause of action. (See Carter, supra, 198 Cal.App.4th at p. 410 [to avoid the
sustaining of a demurrer for an elder abuse cause of action, a plaintiff must plead facts
that show the conduct was reckless, not simply assert that it was reckless].)
20
Next, Plaintiffs relied on an allegation that Defendants recklessly withheld
Elizabeth's transfer to another facility. Reviewing the allegations in the third amended
complaint in their totality, Plaintiffs did not plead facts amounting to neglect or physical
abuse regarding the transfer. Plaintiffs alleged that on February 19, 2013, physician's
orders referenced Elizabeth was to be transferred to Emeritus, but Dr. Ritt put a hold on
the transfer. The complaint states that the next day, the Appropriate Care Committee
noted Dr. Lugo would advise Dr. Mehta of Elizabeth's imminent transfer. Further, the
complaint alleges that later that same day, a Scripps administrator met with Christopher
regarding Elizabeth's transfer, and Christopher's and the Scripps administrator's efforts to
secure a transfer for Elizabeth to Emeritus were successful. These allegations do not
assert Defendants egregiously withheld medical care or did anything else sufficiently
egregious to constitute elder abuse because of the manner in which they handled
Elizabeth's transfer. (Covenant Care, supra, 32 Cal.4th at p. 786 [elder abuse includes
"egregious withholding of medical care"].) To the contrary, Plaintiffs' allegations show
Scripps was working on the transfer with Christopher.
Lastly, Plaintiffs relied on allegations that Defendants administered drugs to
Elizabeth to hasten her death and withheld nutrition, hydration, and pain medication.
However, the third amended complaint is replete with allegations that Elizabeth regularly
received pain medication, nutrition, and fluids. The allegations suggest Defendants
provided Elizabeth with medical care throughout her hospitalization. (Compare Carter,
supra, 198 Cal.App.4th at p. 408 [finding that where defendants provided patient with
medical care, plaintiff's allegations that defendants failed to infuse proper antibiotics and
21
failed to locate proper size endotracheal tube were not sufficient to allege abuse or
neglect under the Elder Abuse Act] with Mack v. Soung (2000) 80 Cal.App.4th 966
[plaintiffs adequately stated a cause of action for elder abuse where doctor concealed the
existence of patient's medical condition, opposed her hospitalization, and abandoned the
patient in her dying hour of need by giving notice of withdrawal as her physician].)
Although Plaintiffs may disagree with the frequency and quantity of the
medication, hydration, and nutrition Defendants provided to Elizabeth, Plaintiffs'
allegations do not constitute abuse or neglect within the meaning of the Elder Abuse Act.
At most, Plaintiffs' allegations might constitute professional negligence. (Carter, supra,
198 Cal.App.4th at p. 408 [citing cases stating elder abuse is distinct from professional
negligence].)
D. Elder Abuse Based on Financial Abuse
Plaintiffs contend the trial court erred in sustaining demurrers to the financial elder
abuse claim in their fourth amended complaint. They argue their fourth amended
complaint properly stated a claim for financial elder abuse based on allegations that
Defendants engaged in a scheme to overbill Elizabeth for procedures and medications.
We disagree.
1. Legal Principles
" 'Financial abuse' of an elder or dependent adult occurs when a person or entity
does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use or with intent to
defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or
22
retaining real or personal property of an elder or dependent adult for a wrongful use or
with intent to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or retains,
or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal
property of an elder or dependent adult by undue influence, as defined in Section
15610.70." (Welf. & Inst. Code, § 15610.30.)
Claims under the Elder Abuse Act, including for financial elder abuse, must be
pleaded with particularity. (Covenant Care, supra, 32 Cal.4th at p. 790.) Additionally,
when a plaintiff alleges fraud, the plaintiff must plead specifically " 'facts which "show
how, when, where, to whom, and by what means" ' " the fraud was perpetrated. (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 645.) A plaintiff must also allege who committed
the fraud. (Ibid.; see also Carter, supra, 198 Cal.App.4th at p. 410 ["plaintiffs' '[u]se of
such terminology [as fraudulently and recklessly] cannot cure [the] failure to point out
exactly how or in what manner the [Hospital has] transgressed.' "].)
2. Plaintiffs' Allegations Were Insufficient to State a Financial Elder Abuse Claim
Here, Plaintiffs' fourth amended complaint alleged Defendants "recklessly,
wrongfully, in bad faith, and with intent to defraud took and assisted in the taking of
property from [Elizabeth] by overbilling for procedures, billing for medications in doses
higher than those allegedly administered, billing for medically unnecessary procedures,
and billing for procedures that were likely never performed." Plaintiffs provided some
details regarding the alleged overbilling, including allegations that Defendants billed for
medically unnecessary procedures, including an "ER Level IV and venipuncture" and
billed for pain medications at doses inconsistent with medical records about the doses
23
actually administered. However, the allegations do not meet the standards required for
pleading a claim of financial elder abuse with particularity.
Plaintiffs' overbilling allegations group all Defendants together without specifying
who in particular overbilled or was responsible for the overbilling. Further, Plaintiffs did
not allege how Defendants collectively engaged in a scheme to defraud Elizabeth, knew
of each other's wrongful conduct, or how specific defendants encouraged or assisted in
the overbilling. In short, standing alone, disputes concerning the accuracy of billing
statements are insufficient to state a claim for financial elder abuse.
Plaintiffs had ample opportunity to cure the defects in the complaint. In sustaining
Defendants' demurrer to Plaintiffs' financial elder abuse claim in the third amended
complaint, the trial court provided Plaintiffs an opportunity to amend, noting "Plaintiffs
allege [D]efendants overbilled but have not particularly pled facts to show how each
improperly billed." Where, as here, Plaintiffs have not overcome their pleading
deficiencies after multiple attempts, the trial court could reasonably conclude they were
unable to do so.5 (Ruinello v. Murray (1951) 36 Cal.2d 687, 690 [affirming denial of
leave to amend after demurrer sustained to third amended complaint].)
5 Embedded within Plaintiffs' argument that they sufficiently pleaded financial elder
abuse, they briefly assert that in ruling on the demurrer to the fourth amended complaint,
the trial court failed to consider a declaration they had submitted regarding Defendants'
efforts to block discovery of billing records. In ruling on a demurrer, the trial court
cannot consider facts outside those pleaded, except for facts judicially noticed.
(Mansdorf v. California Physicians' Service, Inc. (1978) 87 Cal.App.3d 412, 415
[improper for a court to consider counsel's declaration in demurrer proceedings].)
Additionally, in a single sentence, Plaintiffs argue the trial court erred by not
addressing their elder abuse claims based on "abandonment" and "deprivation of care."
24
E. The Trial Court Properly Struck Plaintiffs' Request for Punitive Damages and
Enhanced Remedies
Plaintiffs argue this court should reverse the trial court's decision to strike their
request for punitive damages and enhanced remedies. However, Plaintiffs' claims for
punitive damages and enhanced remedies were based solely on the Elder Abuse Act.
Based on our conclusion that Plaintiffs did not properly plead a claim for elder abuse, the
trial court did not err in striking their punitive damages and enhanced remedies claims.
II. Plaintiffs' Request to Depose a Defense Expert
Plaintiffs argue the trial court abused its discretion in refusing their request to
depose defense expert Dr. Roeland prior to ruling on the Scripps Defendants' and Dr.
Ritt's summary judgment motions.6 The decision whether to grant discovery is within
the sound discretion of the trial court based on all the facts presented. (St. Mary Medical
Ctr. v. Superior Court (1996) 50 Cal.App.4th 1531, 1540 (St. Mary).) As we shall
explain, we conclude the trial court acted within its discretion.
Plaintiffs did not elaborate on their abandonment or deprivation of care claim or provide
citations to the record. "The absence of cogent legal argument or citation to authority
allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke).)
6 On appeal, Plaintiffs argue the trial court abused its discretion in denying their
request to depose multiple experts. However, their motion to compel discovery sought
only the deposition of one expert, Dr. Roeland. Based on the fact that Plaintiffs did not
request multiple expert depositions below, we limit our discussion to Plaintiffs' request to
depose Dr. Roeland. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25
Cal.App.4th 102, 113 [arguments not asserted below are waived and will not be
considered for the first time on appeal].)
25
Code of Civil Procedure section 2034.410 generally prohibits taking the
deposition of an expert prior to the exchange of expert witness designations. However, in
St. Mary, the court found the parties should be allowed to depose an expert who supplies
a declaration in support of or in opposition to summary judgment "under the proper
circumstances." (St. Mary, supra, 50 Cal.App.4th at p. 1540.) The proper circumstances
are "where there is a legitimate question regarding the foundation of the opinion of the
expert." (Ibid., italics added.) "In reaching this conclusion[,] [the court] caution[ed] that
the process should not be utilized to turn summary proceedings into mini-trials. . . .
There must be objective facts presented which create a significant question regarding the
validity of the affidavit or declaration which, if successfully pursued, will impeach the
foundational basis of the affidavit or declaration in question." (Id. at pp. 1540-1541.)
Here, it was undisputed that there had been no expert exchange at the time
Plaintiffs moved to compel Dr. Roeland's deposition. Plaintiffs argued they needed Dr.
Roeland's deposition to respond to the Scripps Defendants' claims that they met the
standard of care, did not cause Elizabeth's death, and did not violate the Probate Code.
Plaintiffs generally stated they had concerns regarding the foundation of Dr. Roeland's
opinions and whether they were based in fact or science, but did not offer evidence to
support these concerns. Plaintiffs then asserted they needed to know whether Dr.
Roeland was given access to Elizabeth's preliminary radiology report. However,
Plaintiffs did not explain how Dr. Roeland's access to the radiology report would have
impacted the validity of his declaration. In short, Plaintiffs did not present objective facts
26
raising a significant question regarding the validity of Dr. Roeland's declaration, which
would impeach its foundational basis.
Plaintiffs also questioned Dr. Roeland's conclusion that the Scripps Defendants
and Dr. Ritt complied with the Probate Code because that conclusion conflicted with
deposition testimony from Drs. Ritt and Evans that they were informed of Elizabeth's
advance health care directive but did not ask for a copy of it. Plaintiffs did not explain
the foundational inadequacy with Dr. Roeland's conclusion, and there does not appear to
be one. In his declaration, Dr. Roeland stated he had reviewed the depositions of Drs.
Ritt and Evans. Dr. Roeland opined the standard of care did not require Dr. Ritt and the
Scripps Defendants to ask for Elizabeth's advance health care directive because she had a
POLST in her chart, which is often considered the same as an advance directive, and the
POLST confirmed Christopher's representation of the contents of Elizabeth's advance
directive. Plaintiffs appear to merely disagree with Dr. Roeland's conclusion that the
Scripps Defendants and Dr. Ritt complied with the Probate Code. The disagreement does
not impeach the foundational basis of Dr. Roeland's declaration.
Based on the foregoing, we conclude the trial court acted within its discretion in
denying Plaintiffs' request to depose Dr. Roeland because Plaintiffs did not articulate a
legitimate question regarding the foundation of Dr. Roeland's declaration based on
objective facts.
27
III. Plaintiffs' Request for a Continuance
Plaintiffs contend the trial court erred by denying their request to continue the
hearing on the Scripps Defendants' and Dr. Ritt's summary judgment motions to allow
Plaintiffs to supplement Dr. Boggeln's May 2016 declaration.
The summary judgment statute provides: "If it appears from the affidavits
submitted in opposition to a motion for summary judgment . . . that facts essential to
justify opposition may exist but cannot, for reasons stated, be presented, the court shall
deny the motion, order a continuance to permit affidavits to be obtained or discovery to
be had, or may make any other order as may be just. The application to continue the
motion to obtain necessary discovery may also be made by ex parte motion at any time
on or before the date the opposition response to the motion is due." (Code Civ. Proc.,
§ 437c, subd. (h).) The party seeking a continuance must submit an affidavit or
declaration showing " '(1) the facts to be obtained are essential to opposing the motion;
(2) there is reason to believe such facts may exist; and (3) the reasons why additional
time is needed to obtain these facts.' " (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246,
254.)
Here, in their written opposition to the Scripps Defendants' and Dr. Ritt's summary
judgment motions, Plaintiffs did not request a continuance, nor did they submit an
affidavit making the necessary showing for a mandatory continuance. Rather, after the
court expressed concerns about Dr. Boggeln's declaration at the summary judgment
hearing, Plaintiffs informed the court, "[t]o the extent that the Court still has concerns
regarding [Dr. Boggeln's] declaration, we're happy to submit an amended declaration to
28
address the Court's concerns." Plaintiffs' statement did not amount to a request for
continuance and did not comply with the requirements of Code of Civil Procedure,
section 437c, subdivision (h). Accordingly, the trial court did not abuse its discretion by
not continuing the summary judgment hearing to provide Plaintiffs an opportunity to
supplement Dr. Boggeln's declaration.
IV. Trial Court's Evidentiary Rulings on Declarations Submitted in Support of and
Opposition to Summary Judgment Motions
Plaintiffs argue the trial court erred in overruling Plaintiffs' objections to defense
expert declarations and sustaining Defendants' objections to Dr. Boggeln's opinions. The
trial court's evidentiary determinations were critical to its summary judgment rulings in
favor of Defendants on Plaintiffs' theories of negligence, wrongful death, and causes of
action for statutory violations of the Probate Code. Thus, we consider Plaintiffs'
arguments concerning the trial court's evidentiary rulings before addressing the trial
court's orders granting summary judgment.
A. Legal Principles
"The declarations in support of a motion for summary judgment should be strictly
construed, while the opposing declarations should be liberally construed. [Citation.]
This does not mean that courts may 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." (Bozzi v. Nordstrom, Inc. (2010) 186
Cal.App.4th 755, 761 (Bozzi).) The trial court acts as a gatekeeper whose role is to
29
"exclude 'clearly invalid and unreliable' expert opinion." (Sargon Enterprises, Inc. v.
Univ. of Southern Cal. (2012) 55 Cal.4th 747, 772 (Sargon).)
"[T]he gatekeeper's focus 'must be solely on principles and methodology, not on
the conclusions that they generate.' " (Sargon, supra, 55 Cal.4th at p. 772.) "The value
of opinion evidence rests not in the conclusion reached but in the factors considered and
the reasoning employed." (Pacific Gas & Electric, Co. v. Zuckerman (1987) 189
Cal.App.3d 1113, 1135.) An "expert opinion may not be based on assumptions of fact
that are without evidentiary support or based on factors that are speculative or
conjectural, for then the opinion has no evidentiary value and does not assist the trier of
fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation
of why the underlying facts lead to the ultimate conclusion has no evidentiary value
because an expert opinion is worth no more than the reasons and facts on which it is
based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510
(Bushling).)
Although in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535, the California
Supreme Court expressly declined to reach the issue of the appropriate standard of review
for reviewing a trial court's rulings on evidentiary objections made in connection with a
summary judgment motion, the weight of authority, both before and after Reid, holds that
an appellate court applies an abuse of discretion standard under these circumstances.
(See, e.g., Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852; Ahn v.
Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143-144; Kincaid v. Kincaid
(2011) 197 Cal.App.4th 75, 82-83; Carnes v. Superior Court (2005) 126 Cal.App.4th
30
688, 694.) De novo review is proper where evidentiary objections raise questions of law,
such as whether or not a statement is hearsay. (Pipitone v. Williams (2016) 244
Cal.App.4th 1437, 1451; see also Sargon, supra, 55 Cal.4th at p. 773.) In contrast,
evidentiary objections based on lack of foundation, qualification of experts, and
conclusory and speculative testimony are traditionally left to the sound discretion of the
trial court. These are the types of evidentiary objections at issue in this case and, thus, we
apply an abuse of discretion standard of review. "[T]he appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all of the
circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d
590, 598.)
B. Plaintiffs' Expert Declarations
Plaintiffs offered multiple expert declarations from Dr. Boggeln to support their
oppositions to Defendants' summary judgment motions. Plaintiffs argue the trial court
abused its discretion in sustaining objections to Dr. Boggeln's opinions. As we shall
explain, we conclude the trial court properly sustained most of Defendants' objections to
Dr. Boggeln's opinions, but abused its discretion in sustaining some of the objections
relevant to a cause of action premised on violations of the Probate Code.
In May 2016, Dr. Boggeln submitted a declaration in opposition to the Scripps
Defendants' and Dr. Ritt's summary judgment motions. In that declaration, Dr. Boggeln
set forth his background and stated he had "reviewed the pertinent medical records
regarding Elizabeth . . . from Scripps . . . and Emeritus." Dr. Boggeln proceeded to set
forth a lengthy medical chronology of events based on Elizabeth's medical records.
31
After detailing the medical chronology, Dr. Boggeln expressed his opinions
regarding the care and treatment Elizabeth received from Defendants. Dr. Boggeln
opined "to a reasonable degree of medical probability" that Defendants, or some of them,
failed to comply with the standard of care and violated the Probate Code by: (1) failing to
receive informed consent regarding changes in treatment, (2) failing to seek out and
maintain Elizabeth's advance health care directive, (3) failing to note Elizabeth's capacity,
(4) recommending Elizabeth not undergo advanced life support measures, (5) having
inconsistencies between medical and billing records, (6) performing various tests on
Elizabeth if they were not medically necessary, (7) performing a venipuncture on a
patient with central venous and peripheral catheters, (8) preparing a draft POLST when
the patient's wishes were recorded in writing, (9) failing to provide pain medication for
10 hours, and (10) refusing to provide life-sustaining treatment, including CPR, artificial
nutrition, and hydration, requested by the patient and her family. Dr. Boggeln concluded
Defendants' "standard of care and Probate Code violations were a substantial factor in
injuring, and causing or contributing to [Elizabeth's] death."
The Scripps Defendants and Dr. Ritt objected to Dr. Boggeln's May 2016
declaration, arguing it lacked foundation, was conclusory, lacked in reason and fact,
contained improper legal conclusions, and failed to address issues raised by their experts.
The Scripps Defendants and Dr. Ritt also criticized Dr. Boggeln's declaration because he
had not reviewed any transcripts from depositions completed in the case and did not
acknowledge Elizabeth's dire condition and end-stage cancer.
32
The trial court sustained the Scripps Defendants' and Dr. Ritt's objections to Dr.
Boggeln's declaration. The court found Dr. Boggeln provided little or no explanation for
his conclusions, conducted only a limited review of "pertinent" medical records from
Scripps and Emeritus, and omitted any mention of Elizabeth's end-stage terminal cancer.
On June 10, 2016, Plaintiffs submitted amended declarations from Dr. Boggeln in
support of their oppositions to Dr. Lugo's, Dr. Mehta's, and Dr. Shieh's summary
judgment motions. On June 17, 2017, Plaintiffs submitted a second amended declaration
from Dr. Boggeln in opposition to Dr. Mehta's and Dr. Shieh's summary judgment
motions. In his amended and second amended declarations, Dr. Boggeln expressed
substantially the same opinions as in his original declaration. However, Dr. Boggeln
acknowledged Elizabeth's cancer diagnosis and stated that cancer patients are not barred
from receiving CPR. He opined that the life-sustaining treatment Elizabeth had requested
in her advance health care directive would have sustained and improved her life. Dr.
Boggeln also addressed defense expert opinions that Elizabeth could not tolerate artificial
hydration beyond the amounts provided. He implied she could have received further
hydration and Defendants' failures to provide her with fluids and tube feedings led to her
death because they resulted in dehydration and malnutrition.
Drs. Lugo, Mehta, and Shieh objected to Dr. Boggeln's amended declarations,
arguing they lacked foundation, were conclusory, contained improper legal conclusions,
and overlooked key facts, such as Dr. Nasar's opinion that Elizabeth would die within a
matter of days after her transfer to Scripps. The trial court sustained Dr. Lugo's, Dr.
Mehta's, and Dr. Shieh's evidentiary objections, finding Dr. Boggeln had not reviewed
33
any deposition transcripts in the case and offered no analysis of how Elizabeth's advanced
stage terminal cancer impacted his conclusory opinions that Drs. Lugo, Mehta, and Shieh
had violated the standard of care and caused Elizabeth's death. The trial court also found
Dr. Boggeln provided little explanation or reasoning for his conclusions.
1. Opinions on Causation
We begin our analysis with the fatal flaw in Dr. Boggeln's declarations, namely his
failures to adequately address causation. Even applying a liberal construction to Dr.
Boggeln's declarations, he did not attempt to explain how any of Defendants' alleged
breaches of the standard of care and failures to comply with the Probate Code caused
Elizabeth injury or death or how requested measures would have, in Dr. Boggeln's words,
"improved the quality of her life." Not only did he fail to acknowledge Elizabeth's
severely deteriorated condition when she was admitted to Scripps, he never explained
how her compromised condition impacted his conclusions.
In his May declaration, without explanation or consideration of Elizabeth's dire
medical condition, Dr. Boggeln stated the life-sustaining treatment Elizabeth and
Christopher had requested, including CPR, artificial nutrition, and hydration, "would not
have caused her harm, and in fact would have sustained her life and improved the quality
of her life." He continued by opining "to a reasonable degree of medical probability" that
Defendants' "standard of care and Probate Code violations were a substantial factor in
injuring, and causing or contributing to [Elizabeth's] death." The trial court sustained
Defendants' objections to these opinions on the basis that they were conclusory and
lacked foundation. The trial court did not abuse its discretion in reaching this conclusion.
34
Of particular significance is the fact Dr. Boggeln never mentioned Elizabeth's
advanced stage pancreatic cancer with metastases to her bones or explain how her
severely compromised condition impacted his conclusion that Defendants' failures to
comply with the standard of care and Probate Code substantially contributed to
Elizabeth's death. Additionally, Dr. Boggeln did not address how Elizabeth's severely
malnourished condition impacted her ability to receive artificial intravenous fluids or
contradict defense expert evidence that intravenous fluids could have resulted in serious
medical problems, including edema, reduced cardiac output, decreased lung function,
discomfort, and hypotension. In short, he never explained how any of the requested
treatments would have "improved her life." Nor did he acknowledge that physicians are
not required to render medically ineffective health care, defined as treatment that would
not offer any significant benefit. (Cal. Law Revision Com. com., 52B West's Ann. Prob.
Code (2009 ed.) foll. § 4735, p. 453.)
Without at least some minimal basis, explanation, or reasoning, Dr. Boggeln's
conclusions as to causation in his May declaration had no evidentiary value. (Bushling,
supra, 117 Cal.App.4th at p. 509 [plaintiff "must show that defendants' breach of the
standard of care was the cause, within a reasonable medical probability, of his injury"];
Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525 [the summary judgment "standard is not
satisfied by laconic expert declarations which provide only an ultimate opinion,
unsupported by reasoned explanation"].)
In an attempt to remedy the deficiencies in Dr. Boggeln's May 2016 declaration,
Plaintiffs submitted amended declarations in opposition to the summary judgment
35
motions by Drs. Lugo, Mehta, and Shieh. However, Dr. Boggeln's amended declarations
suffered many of the same fatal deficiencies as his original declaration. In the amended
declarations, Dr. Boggeln acknowledged Elizabeth's cancer diagnosis, but never
recognized how compromised her condition was when she was admitted to Scripps.
Instead, he stated he was "aware that some, but not all, resuscitative measures may cause
a patient injury. While [Elizabeth] suffered from cancer, [his] experience [was] that
cancer patients are not barred from receiving [CPR]." Dr. Boggeln's general statement
that cancer patients can receive CPR did not address evidence regarding Elizabeth's
specific cancer diagnosis including metastases to her ribs, and the likelihood that CPR
would have crushed them, causing excruciating pain. An "expert may not base opinion
upon a comparison if the matters compared are not reasonably comparable." (Sargon,
supra, 55 Cal.4th at p. 770, citing Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d
369.) Here, Dr. Boggeln essentially compared Elizabeth to unspecified cancer patients
without discussing facts pertinent to Elizabeth's specific case.
In his amended declarations, Dr. Boggeln also discussed defense expert opinions
that Elizabeth could not tolerate artificial hydration beyond what was provided. Dr.
Boggeln stated Elizabeth's medical records did not show she was harmed by tube
feedings and intravenous fluids because her edema grades remained consistent from
admission until her death. Dr. Boggeln implied Defendants' failures to provide Elizabeth
with fluids and tube feedings led to her death because they resulted in dehydration and
malnutrition. He stated, "[a]ny person, including with cancer, will die without proper
fluids and nutrition." Again, Dr. Boggeln did not discuss the impact of facts pertinent to
36
Elizabeth, including her terminal medical condition, and critically omitted any discussion
of the medical effectiveness of the care Elizabeth had requested in her advance health
care directive. Notably, Dr. Boggeln did not address facts that Elizabeth entered Scripps
in a severely malnourished and dehydrated condition and had significant wasting of her
body that could not be treated or reversed. Without addressing this critical evidence, Dr.
Boggeln did not sufficiently explain how Defendants' actions caused Elizabeth injury or
death or how the treatment requested in her advance health care directive would have
benefitted her or sustained or improved her condition.
Finally, we note that the trial court also criticized Dr. Boggeln's declaration
because he relied on the determination of a licensed vocational nurse at Emeritus that
Elizabeth's prognosis was greater than six months. Plaintiffs argued the trial court was
required to accept the nurse's statement as true. However, a trial court can inquire into
the type of material on which an expert relies. (Sargon, supra, 55 Cal.4th at p. 771.)
" '[T]he expert's opinion may not be based "on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors. . . ." ' " (Id. at p. 770.)
In this case, Dr. Boggeln relied on a form a licensed vocational nurse at Emeritus
had completed in which she checked a box indicating Elizabeth did not have a condition
or chronic disease that may result in life expectancy of less than six months. Although
the prognosis notation required physician documentation and none was included with the
form, Dr. Boggeln did not address or explain that deficiency. Instead, he appeared to
take the nurse's prognosis determination as true without question or explanation. The
trial court did not abuse its discretion in concluding Dr. Boggeln relied on an incomplete
37
form completed by a licensed vocational nurse and disregarded other relevant evidence
from Dr. Nasar concerning Elizabeth's prognosis. Accordingly, Dr. Boggeln's opinion as
to Elizabeth's prognosis lacked foundation in that it was based on incomplete facts.
As will be discussed, without expert testimony on causation, Plaintiffs could not
defeat summary judgment on their professional negligence and wrongful death causes of
action against Defendants.
2. Opinions Regarding Standard of Care Violations
In his declarations, Dr. Boggeln expressed numerous opinions regarding
Defendants' alleged failures to comply with the standard of care. His opinions, however,
were deficient because they did not account for each Defendant's differing role in
Elizabeth's care. Instead, in discussing the alleged standard of care violations, Dr.
Boggeln grouped the physician defendants and Scripps together. For example, he opined
that "Scripps, Ritt, Lugo, Wiesner, Mehta, Evans, Shieh, King, Pund, and Ettari's failure
to provide Dilaudid for nearly ten hours on February 20, 2013 failed to comply with the
standard of care." Dr. Boggeln did not explain how each of these defendants was
responsible for the failure of Elizabeth to receive pain medication during the relevant
time period.
In fact, Dr. Boggeln acknowledged that some of the physicians he claimed
violated the standard of care concerning pain medication did not see or treat Elizabeth on
February 20, 2013. Specifically, Drs. Shieh and Wiesner had no involvement with
Elizabeth's care on February 20, 2013, and members of the Appropriate Care Committee
met at Elizabeth's bedside that day, but the meeting was before the relevant time period,
38
the committee recommended pain medications, and the committee did not make any
orders prescribing pain medications. Dr. Boggeln does not state why or how Drs. Shieh
and Wiesner and members of the Appropriate Care Committee were responsible for the
administration of pain medication on February 20, 2013.
Concerning Drs. Lugo, Mehta, and Ritt, the doctors who had provided Elizabeth
medical care on February 20, 2013, Dr. Boggeln admitted that these doctors had
prescribed Elizabeth pain medications. Based on the undisputed facts set forth in Dr.
Boggeln's declarations, on that day at 7:45 a.m., Dr. Lugo had prescribed 1.5 milligrams
of hydromorphone every two hours as needed for pain. Thereafter, at 11:50 a.m., Dr. Ritt
increased the hydromorphone to two milligrams every two hours as needed for pain. At
4:00 p.m., Dr. Mehta observed Elizabeth in pain. At 6:54 p.m., Dr. Mehta placed an
order for Elizabeth to receive one milligram of hydromorphone every two hours as
needed for pain.
Although Dr. Boggeln opined that Drs. Ritt, Lugo, and Mehta failed to comply
with the standard of care because Elizabeth did not receive pain medication between 2:02
p.m. and 11:47 p.m. on February 20, 2013, his medical chronology reveals that these
doctors (the only doctors who had provided Elizabeth medical care on that day) acted
consistently with the Appropriate Care Committee's recommendations by placing orders
39
for pain medications. Dr. Boggeln did not set forth what actions, if any, the doctors were
required to take beyond prescribing pain medications.7
Similarly, Dr. Boggeln opined that "Scripps, Ritt, Lugo, Wiesner, Mehta, Evans,
Shieh, King, Pund, Ettari, and Knight's refusal to provide [CPR] when requested by the
patient and her family violated the standard of care and Probate Code." Dr. Boggeln did
not individually set forth how each of the defendants was responsible for providing
Elizabeth CPR. For example, Dr. Boggeln did not state how Dr. Shieh, who was merely
an oncology consultant and did not make any recommendations or orders regarding CPR,
violated the standard of care by refusing to provide such treatment. Further, Dr. Boggeln
did not explain how Scripps, a health care institution, was responsible for providing CPR.
As we previously explained, he also failed to account for the various physicians' opinions
that CPR would have crushed Elizabeth's bones and caused her excruciating pain.
Most, if not all, of Dr. Boggeln's opinions about alleged standard of care violations
group Defendants together without explanation as to how each was responsible for the
violation. His failure to indicate how each defendant's acts constituted a violation of the
standard of care renders his opinions deficient.
7 Plaintiffs did not allege who was responsible for the administration of pain
medications, as prescribed by Elizabeth's physicians, nor did they sue any nurses who
may have been involved in the administration of pain medications. Further, Plaintiffs did
not contend in opposition to Defendants' summary judgment motions that Scripps or the
physician defendants were liable for any nurse's administration of pain medications by
virtue of an employment relationship.
40
3. Opinions Regarding Probate Code Violations
In addition to Dr. Boggeln's opinions concerning causation and alleged standard of
care violations, he also expressed opinions relevant to Plaintiffs' causes of action for
statutory violations of the Probate Code. Here, Plaintiffs alleged violations of section
4730 (communication of health care decisions); section 4731, subdivision (a) (requesting
and maintaining advance directive); section 4732 (recording information about capacity);
section 4736 (duties upon declining to comply with a health care instruction); and section
4742, subdivision (b) (concealment or inducement to change advance directive).
In general, the Health Care Decisions Law, as codified in the Probate Code,
protects an individual's right to control decisions relating to his or her own health care,
including end-of-life decisions, and provides the standards governing health care
decisions. The Health Care Decisions Law also provides that where there are technical
violations of these sections, health care providers and health care institutions are entitled
to immunity when they "act[ed] in good faith and in accordance with generally accepted
health care standards . . . ." (§ 4740.) Acting in accordance with generally accepted
health care standards is equivalent to compliance with the standard of care. It is in this
context we consider the trial court's rulings on Dr. Boggeln's opinions regarding these
statutory violations.
a. Requesting and Maintaining Patient's Advance Directive
We start with Dr. Boggeln's opinion that the medical professional defendants
violated the standard of care and Probate Code by failing to seek out and maintain
Elizabeth's advance health care directive (§ 4731, subd. (a)). On this issue, the trial court
41
sustained Defendants' objections to Dr. Boggeln's opinions in his original and amended
declarations that a POLST is different from an advance directive; and the standard of care
and Probate Code require a physician who is aware of an advance directive to request a
copy of it even if a POLST is already in the patient's file and family members have
informed the physician of the patient's end-of-life wishes. This evidence contradicted
defense expert opinions on these issues.
Because Dr. Boggeln's opinion was based on his experience, was not otherwise
lacking in foundation, and was relevant to whether Defendants acted in accordance with
generally accepted health care standards to qualify for immunity, we conclude the trial
court erred in sustaining objections to Dr. Boggeln's opinion that a physician has a duty
to request the patient's advance directive even if a POLST is in the medical record.
b. Communication, Capacity, Declining to Comply with Patient's
Instructions, and Concealment or Inducement to Change Advance Directive
In his declarations in opposition to Defendants' summary judgment motions, Dr.
Boggeln also offered opinions relating to Probate Code sections requiring communication
of health care decisions, recordation of information about a patient's capacity, medical
providers' duties upon declining to comply with a patient's health care instructions, and
concealment or inducement to change a patient's advance directive. He stated the
physician defendants failed to comply with the standard of care and Probate Code by
failing to receive informed consent regarding changes in treatment; failing to note
Elizabeth's capacity; failing to continue care; and preparing a draft POLST when the
patient's wishes were recorded in writing.
42
Again, Dr. Boggeln did not account for the Defendants' individual roles and
relationships to Elizabeth. He grouped members of the Appropriate Care Committee
together with treating doctors, without regard to the differences in their responsibilities to
the patient. For example, he did not explain how the Appropriate Care Committee
members qualified as primary physicians who are required to document information
about capacity. Similarly, he did not state which of the physician defendants, if any,
made or were informed about a determination that Elizabeth lacked capacity, and he did
not explain how any of the physicians individually failed to receive informed consent.8
Based on the foregoing, we conclude the trial court acted within its discretion in
sustaining objections to Dr. Boggeln's opinions concerning Defendants' alleged breaches
of the standard of care and violations of the Probate Code outlined above.
C. Defense Expert Declarations
Plaintiffs argue the trial court erred in overruling their objections to expert
declarations offered by Drs. Lugo, Mehta, and Shieh. "Before an appellate court can
knowledgeably rule upon an evidentiary issue presented, it must have an adequate record
before it to determine if an error was made. For this purpose, we are limited to reviewing
the matters appearing in the record." (In re Mark C. (1992) 7 Cal.App.4th 433, 445.)
Although it was Plaintiffs' responsibility to include in the appellate record the portions of
8 For similar reasons, we conclude the trial court acted within its discretion in
sustaining objections to Dr. Boggeln's opinions concerning whether Defendants fulfilled
their duties upon declining to comply with Elizabeth's health care instructions and
whether Defendants concealed or induced Elizabeth or Christopher to change Elizabeth's
advance directive.
43
the reporter's transcript relevant to their issues on appeal (Bianco v. California Highway
Patrol (1994) 24 Cal.App.4th 1113, 1125), Plaintiffs did not do so, nor did they provide a
settled statement or agreed statement of the relevant hearings. Consequently, we address
Plaintiffs' arguments to the extent we can from the record before us.
1. Dr. Vincent Nguyen's Declaration in Support of Dr. Lugo's Summary
Judgment Motion
Dr. Lugo supported his summary judgment motion with an expert declaration from
Dr. Nguyen. Plaintiffs argue the trial court erred by not sustaining their objections to Dr.
Nguyen's declaration because as a doctor of osteopathic medicine (D.O.), rather than a
doctor of medicine (M.D.), he was not qualified to render opinions in this case. They
also argue Dr. Nguyen did not review Plaintiffs' deposition transcripts; his opinions
contradicted the Probate Code; and he improperly opined, without analysis, that Dr. Lugo
did not violate the Probate Code.9 We reject Plaintiffs' arguments.
Dr. Nguyen was qualified to provide expert testimony in this case. "A person is
qualified to testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates." (Evid. Code, § 720, subd. (a).) Contrary to Plaintiffs' argument, Dr. Nguyen's
lack of an M.D. did not prevent him from being a qualified expert. "T]he Board of
9 We need not consider Plaintiffs' arguments concerning Dr. Nguyen's opinions that
Dr. Lugo complied with the Probate Code. As we explain later, based on section 4740,
Dr. Lugo was immune from liability for alleged violations of sections 4730, 4732, 4736
and 4742, subdivision (b), and, on appeal, Plaintiffs have not argued the trial court erred
in granting summary judgment in favor of Dr. Lugo on their section 4731, subdivision
(a), 4732, and 4736 causes of action.
44
Osteopathic Examiners issues licenses which 'authorize the holders to practice medicine
and surgery, the same as licensed physicians and surgeons.' " (Hundley v. St. Francis
Hospital (1958) 161 Cal.App.2d 800, 803; see also Bus. & Prof. Code, § 2453, subd. (a).)
In any event, Dr. Nguyen had ample qualifications to testify as an expert. He was
licensed to practice medicine in California and board certified in family practice and
osteopathic manipulative treatment with "certificates of added qualification in [g]eriatric
[m]edicine, and [h]ospice & [p]alliative [m]edicine." Further, Dr. Nguyen was the
medical director of the palliative care program at a hospital, an assistant clinical professor
in palliative medicine at a university medical center, chair of the Orange County POLST
coalition, and a member of the POLST physician leadership council. Dr. Nguyen
declared he was familiar with the standard of care in the community for physicians
attending to geriatric patients in a hospital setting, including providing medical treatment
and hospice care to terminally ill patients, obligations of physicians to provide only
medically effective treatment, and the procedures that must be followed pursuant to the
standard of care and Probate Code when there is a disagreement between physicians and
the patient's or surrogate's wishes. With these qualifications, the trial court did not abuse
its discretion in determining Dr. Nguyen was a qualified expert.
Plaintiffs next challenge Dr. Nguyen's declaration because he had not reviewed
Plaintiffs' deposition transcripts. However, in objecting to Dr. Nguyen's declaration,
Plaintiffs did not explain how their deposition testimony was relevant to or impacted Dr.
Nguyen's opinions. As noted, because the record does not contain a reporter's transcript
from the relevant hearing from which we can discern the basis of Plaintiffs' argument,
45
Plaintiffs have failed to provide a sufficient basis to establish the trial court abused its
discretion.
2. Dr. Rolf Ehlers's Declaration in Support of Dr. Mehta's Summary
Judgment Motion
Dr. Mehta supported her summary judgment motion with an expert declaration
from Dr. Ehlers. Plaintiffs argue the trial court erred in overruling their objections to Dr.
Ehlers's declaration because Dr. Ehlers did not state the type of medicine he practices,
how long he has been a doctor, and his opinion on whether Dr. Mehta violated the
Probate Code. We disagree.
Dr. Ehlers declared he was a physician licensed to practice in California,
completed an internship and residency at the University of California, San Diego, was
board certified in internal medicine, and practiced at a Sharp Community Medical Group.
Further, Dr. Ehlers stated he was familiar with the standard of care for internal medicine
physicians in the local community. Based on these qualifications, the trial court did not
abuse its discretion in concluding Dr. Ehlers had sufficient qualifications to act as an
expert in this case.
We also reject Plaintiffs' foundation challenge to Dr. Ehlers's declaration on the
basis that he did not render an opinion as to whether Dr. Mehta violated the Probate
Code. Although Dr. Ehlers did not directly reference the Probate Code, he addressed the
substance of Plaintiffs' allegations that Dr. Mehta violated the Probate Code. For
example, Dr. Ehlers opined that Dr. Mehta acted within the standard of care by:
documenting her care and treatment of Elizabeth, communicating with Elizabeth's family,
46
not demanding Elizabeth's advance health care directive, and providing treatment and
care to Elizabeth. Dr. Ehlers's failure to reference the Probate Code does not diminish his
opinion that Dr. Mehta's actions, orders, recommendations, and communications were
within the standard of care and directed at providing Elizabeth only medically beneficial
and effective care without causing her further pain, suffering, or harm.
3. Dr. Thompson Adams's Declaration in Support of Dr. Shieh's Summary
Judgment Motion
Dr. Shieh supported her summary judgment motion with an expert declaration
from Dr. Adams. Plaintiffs argue the trial court erred in overruling their objections to Dr.
Adams's declaration because Dr. Adams did not review the depositions of McDermet,
Clenton, Knight, and Drs. Nasar, Wiesner, King, Mehta, Pund, and Ettari. Plaintiffs
further argue Dr. Adams's declaration lacked foundation because he did not mention the
Probate Code. We find these arguments unavailing.
As with their objections to Dr. Nguyen's declaration, Plaintiffs did not explain in
the trial court or on appeal how the depositions they claim Dr. Adams should have
reviewed impacted his opinions. Plaintiffs have not provided us with a sufficient basis to
find the trial court abused its discretion.
Moreover, we reject Plaintiffs' challenge to Dr. Adams's declaration on the basis
that he did not mention the Probate Code. Dr. Adams was not required to reference the
Probate Code in providing opinions as to whether Dr. Shieh complied with the standard
of care and caused Elizabeth to suffer harm or injury. For example, it was not necessary
for Dr. Adams to reference the Probate Code when opining that Dr. Shieh complied with
47
the standard of care when she consulted with Elizabeth and recommended hospice care
and palliative therapy, and communicated with Christopher. Likewise, it was not
necessary for Dr. Adams to mention the Probate Code when opining Dr. Shieh's care and
treatment was not a negligent cause of harm to Elizabeth.
V. Summary Judgments in Favor of Defendants
Plaintiffs argue the trial court erred in granting summary judgment on their claims
for professional negligence, wrongful death, negligent misrepresentation, and statutory
Probate Code violations. We address each of Plaintiffs' arguments separately and reject
them for reasons we detail below.
A. Summary Judgment Principles
We review de novo the trial court's orders granting Defendants' motions for
summary judgment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037
(Yanowitz).) "A defendant's motion for summary judgment should be granted if no
triable issue exists as to any material fact and the defendant is entitled to a judgment as a
matter of law. [Citation.] The burden of persuasion remains with the party moving for
summary judgment." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
1002-1003.)
"If the defendant 'carries his burden of production, he causes a shift, and the
opposing party is then subjected to a burden of production of his own to make a prima
facie showing of the existence of a triable issue of material fact.' [Citation.] 'The
plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show
that a triable issue of material fact exists but, instead, shall set forth the specific facts
48
showing that a triable issue of material fact exists as to that cause of action . . . .' "
(Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1497.)
"[T]o determine whether there is a triable issue, we review the evidence submitted
in connection with summary judgment, with the exception of evidence to which
objections have been appropriately sustained." (Frittelli, Inc. v. 350 North Canon Drive,
LP (2011) 202 Cal.App.4th 35, 41.) "We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in favor
of that party." (Yanowitz, supra, 36 Cal.4th at p. 1037.) "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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850.)
"Although our review of a summary judgment is de novo, it is limited to issues
which have been adequately raised and supported in plaintiffs' brief." (Reyes v. Kosha
(1998) 65 Cal.App.4th 451, 466, fn. 6.) "[D]e novo review does not obligate us to cull
the record for the benefit of the appellant in order to attempt to uncover the requisite
triable issues." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
Further, "[p]oints raised for the first time in a reply brief will ordinarily not be
considered, because such consideration would deprive the respondent of an opportunity
to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th
1446, 1453.) Accordingly, we limit our discussion to the specific points raised in
Plaintiffs' opening brief.
49
B. Plaintiffs' Professional Negligence and Wrongful Death Claims
Plaintiffs argue the trial court erred in granting summary judgment on their
professional negligence and wrongful death claims. Specifically, they contend: (1) Dr.
Boggeln's declarations created a triable issue of fact concerning negligence; (2) the trial
court erred in ruling the Appropriate Care Committee members did not owe Elizabeth a
duty of care; (3) expert testimony was unnecessary to prove their claim for negligence
based on lack of informed consent; and (4) a presumption of negligence arose from
Defendants' violations of various statutes and regulations. We reject Plaintiffs'
arguments.
1. Legal Principles of Professional Negligence and Wrongful Death
" 'A cause of action for wrongful death is . . . a statutory claim. (Code Civ. Proc.,
§§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss
of companionship and for other losses suffered as a result of a decedent's death.'
[Citation.] ' "The elements of the cause of action for wrongful death are the tort
(negligence or other wrongful act), the resulting death, and the damages, consisting of the
pecuniary loss suffered by the heirs." ' " (Lattimore v. Dickey (2015) 239 Cal.App.4th
959, 968 (Lattimore).) Here, Plaintiffs based their wrongful death action on theories of
professional negligence and lack of informed consent by Knight and Drs. Lugo, Wiesner,
Ritt, Mehta, Evans, Shieh, Boyd-King, Ettari, and Pund.
" 'The elements of a cause of action in tort for professional negligence are: (1) the
duty of the professional to use such skill, prudence, and diligence as other members of his
profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate
50
causal connection between the negligent conduct and the resulting injury; and (4) actual
loss or damage resulting from the professional's negligence. [Citations.]' " (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 746-747.) Further, "[i]t long has been held that an
essential element of a cause of action for medical malpractice is a physician-patient
relationship giving rise to a duty of care." (Mero v. Sadoff (1995) 31 Cal.App.4th 1466,
1471 (Mero).) " 'Informed consent is a subcategory of professional negligence
doctrine.' " (Townsend v. Turk (1990) 218 Cal.App.3d 278, 284.)
2. Dr. Boggeln's Declarations Did Not Raise a Triable Issue of Fact
Plaintiffs argue Dr. Boggeln's declarations created a triable issue of fact on the
elements of negligence because he concluded Defendants owed Elizabeth a duty of care,
Defendants breached that duty, and there was a causal connection between the negligent
conduct and the resulting injury. However, as previously explained, the trial court
properly sustained Defendants' objections to Dr. Boggeln's opinions regarding causation.
(See part IV.B.1, ante.) Without evidence contradicting Defendants' experts that
Defendants did not cause Elizabeth injury or her death, Plaintiffs could not defeat
summary judgment. (Lattimore, supra, 239 Cal.App.4th at p. 970 [" 'causation must be
proven within a reasonable medical probability based upon competent expert
testimony' "]; Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 387
["expert testimony is required to establish negligence in a medical malpractice case"].)
3. Necessity of Expert Testimony to Establish Lack of Informed Consent
As to Plaintiffs' wrongful death and professional negligence claims premised on a
lack of informed consent theory, Plaintiffs argue that even if the trial court did not err in
51
sustaining objections to their experts' declarations, expert testimony was not required.
Under the circumstances of this case, we disagree.
The doctrine of informed consent imposes upon a physician a "duty to disclose to
a patient information material to the decision whether to undergo treatment." (Arato v.
Avedon (1993) 5 Cal.4th 1172, 1175.) Expert testimony plays a limited role in
determining the scope of a physician's duty to disclose information to a patient. (Id. at p.
1191.) In Cobbs v. Grant (1972) 8 Cal.3d 229 (Cobbs), our high court explained a
physician's obligation to disclose risks inherent in a medical procedure is twofold:
"[W]hen a given procedure inherently involves a known risk of death or serious bodily
harm, a medical doctor has a duty to disclose to his patient the potential of death or
serious harm, and to explain in lay terms the complications that might possibly occur."
(Id. at p. 244.) "[A] doctor must also reveal to his patient such additional information as
a skilled practitioner of good standing would provide under similar circumstances." (Id.
at pp. 244-245.) Only the second category of information is a proper subject for expert
testimony, as it may be needed to establish the standard in the industry. (Daum v.
SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301-1302.)
Here, Plaintiffs do not contend that Defendants failed to disclose information
regarding risks of death, serious harm, and complications that may result from treatment,
and acknowledge they knew Elizabeth's death was imminent and her condition was
terminal. Instead, Plaintiffs argue Defendants did not disclose they had changed
Elizabeth's code status, withdrawn treatments, administered unnecessary treatments, and
delayed transfer to another facility. These disclosures fall within the second category of
52
information in which expert testimony is needed to assess what, if any, disclosures would
be made to the patient by a skilled practitioner in the relevant medical community under
the circumstances.
Defendants presented expert opinion testimony that medical providers are not
required to discuss every medical decision with the patient. They also presented expert
opinion testimony that Defendants complied with the standard of care in their
communications with Christopher concerning Elizabeth's treatment. In opposition,
Plaintiffs presented Dr. Boggeln's declarations. In his May 2016 declaration offered in
opposition to the Scripps Defendants' and Dr. Ritt's summary judgment motions, Dr.
Boggeln generally stated the physician defendants' failures to receive informed consent
for treatment violated the standard of care. This opinion was insufficient to defeat
summary judgment as to the Scripps Defendants and Dr. Ritt because there was no
explanation as to what disclosures the Scripps Defendants and Dr. Ritt were required to
make to comply with the standard of care for informed consent, and Dr. Boggeln did not
provide any reasoning as to how the Scripps Defendants' and Dr. Ritt's alleged failures to
receive informed consent caused Elizabeth injury or her death. (See Cobbs, supra, 8
Cal.3d at p. 245.)
In regard to Drs. Lugo, Mehta, and Shieh, Dr. Boggeln's June 2016 declarations
provided more detail for his opinion on the issue of informed consent. However,
informed consent is a theory of negligence, which requires a showing of causation
(Cobbs, supra, 8 Cal.3d at p. 245), and, as we previously discussed, Dr. Boggeln did not
adequately address causation. His opinions on the matter were conclusory and did not
53
consider the impact of critical facts, including Elizabeth's severely compromised
condition. (See part IV.B.1, ante.) Additionally, he did not set forth Drs. Lugo, Mehta,
and Shieh's individual failures to receive informed consent.
Based on the foregoing, we conclude Plaintiffs could not defeat summary
judgment on their negligence and wrongful death causes of action premised on lack of
informed consent.
4. The Appropriate Care Committee's Duty of Care
Plaintiffs challenge the trial court's finding that Drs. Evans, Boyd-King, Ettari, and
Pund (members of Scripps's Appropriate Care Committee) did not owe Elizabeth a duty
of care.
" 'Whether a defendant owes a duty of care is a question of law.' " (Marlene F. v.
Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) A physician's
duty of care to a patient does not arise until a physician-patient relationship is established.
(Mero, supra, 31 Cal.App.4th at p. 1471.) When a physician-patient relationship exists,
"the patient has a right to expect the physician will care for and treat him with proper
professional skills and will exercise reasonable and ordinary care and diligence toward
the patient [citation]." (Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313.)
Several courts have found a physician-patient relationship does not exist where the
physician does not affirmatively treat or directly advise the patient. (Rainer v. Grossman
(1973) 31 Cal.App.3d 539, 542-543 [holding a physician and professor of medicine did
not have a physician-patient relationship under circumstances in which he recommended
to a treating physician during a lecture that the treating physician's patient undergo
54
surgery]; Clarke v. Hoek (1985) 174 Cal.App.3d 208, 211 [holding a physician who acted
as a proctor during surgery to evaluate surgeon's competence did not have a physician-
patient relationship with patient undergoing surgery]; Keene v. Wiggins, supra, 69
Cal.App.3d at pp. 310-311 [holding no physician-patient relationship created where
physician examined plaintiff for purpose of rating the plaintiff's injury for employer's
insurance carrier in workers' compensation proceeding]; Felton v. Schaeffer (1991) 229
Cal.App.3d 229, 234 [holding no physician-patient relationship where defendants
evaluated plaintiff solely for the purpose of a pre-employment physical examination].)
Whether a duty of care is owed is decided on a case-by-case basis. (Mintz v. Blue Cross
of California (2009) 172 Cal.App.4th 1594, 1610.)
In this case, members of the Appropriate Care Committee evaluated Elizabeth's
medical history, provided an opinion on what constituted medically ineffective care, and
made recommendations when the treating physicians' plan of care was inconsistent with
the patient's directives. Although these facts are not identical to those cases in which a
physician conducted a pre-employment physical examination requested by the employer,
rated an industrial injury for an insurance carrier, acted as a proctor to assess a colleague's
competence, or opined on a case history in the context of an educational lecture, the cases
make clear the critical inquiry is the nature of the relationship and contact between the
physician and patient.
Under the circumstances of this case, we conclude Drs. Evans, Boyd-King, Ettari,
and Pund did not have a physician-patient relationship with Elizabeth sufficient to impose
upon them a duty of care. These doctors were members of the Appropriate Care
55
Committee, a team of volunteer physicians who provided recommendations when
treating physicians' plan of care conflicted with the patient's wishes. Although the
Appropriate Care Committee doctors met at Elizabeth's bedside, they did not treat
Elizabeth. Rather, their role was limited to reviewing Elizabeth's medical records,
considering the impressions of her consulting and treating physicians, and observing
Elizabeth for the purpose of making recommendations that Elizabeth's treating physicians
could accept or reject. The Appropriate Care Committee doctors' actions were
insufficient to give rise to a physician-patient relationship and associated duty of care to
Elizabeth.
Further, committees such as the Appropriate Care Committee serve a valuable role
in patient care. They act as an independent review of what constitutes medically
ineffective care and the patient's best interests when a treating physician declines to
comply with a patient's health care instruction. The imposition of liability under these
circumstances would be counterproductive to a valuable health care resource and would
discourage physicians from participating in volunteer committees that serve an important
and difficult role in circumstances in which medical providers believe complying with a
patient's directives would be medically ineffective and cause the patient harm. For these
reasons, public policy considerations militate against imposing a duty of care in this case.
5. Negligence Per Se
Plaintiffs next argue a presumption of negligence arose from Defendants' demands
that Elizabeth's heirs abandon her advance directive, which they contend violated
sections 4684 and 4714 requiring agents and surrogates to make decisions in accordance
56
with the patient's health care instructions. Plaintiffs also argue a presumption of
negligence arose from Defendants' violations of provisions in state and federal
regulations, including California Code of Regulations, title 22, section 70707, and 42
Code of Federal Regulations parts 489.102 and 482.13. Because their presumption of
negligence theories were not identified in the fourth amended complaint and were not
raised in their oppositions to Defendants' summary judgment motions, we reject
Plaintiffs' arguments.
In their fourth amended complaint, Plaintiffs generally alleged Defendants were
negligent because they "violated the Probate Code" and "violated the Code of
Regulations." They did not allege a presumption of negligence arose from violations of
the specific regulations they now rely upon and sections 4684 and 4714. Because
Plaintiffs did not allege they were "entitled to rely on a presumption of negligence under
a theory of negligence per se and did not ask permission to amend [their] complaint" to
allege that theory, they are precluded from relying on negligence per se to defeat
summary judgment. (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353.)
Further, in their oppositions to Defendants' summary judgment motions, Plaintiffs
did not argue a presumption of negligence arose from sections 4684 and 4714 and the
regulations upon which they now rely. Instead, in a single sentence, Plaintiffs stated a
presumption of negligence arose from Defendants' violations of the Probate Code
sections they asserted as separate causes of action (§§ 4730, 4731, 4732, 4736, and
4742). Plaintiffs mentioned 42 Code of Federal Regulations parts 489.102 and 482.13,
but only in arguing Defendants intentionally violated the Probate Code. " 'A party is not
57
permitted to change his position and adopt a new and different theory on appeal. To
permit him to do so would not only be unfair to the trial court, but manifestly unjust to
the opposing litigant.' " (DiCola v. White Brothers Performance Products, Inc. (2008)
158 Cal.App.4th 666, 676.) Accordingly, Plaintiffs cannot raise their presumption of
negligence theory based on sections 4684 and 4714 and state and federal regulations for
the first time on appeal.
C. Alleged Probate Code Violations
Plaintiffs alleged Defendants violated multiple provisions of the Health Care
Decisions Law, including sections 4730, 4731, subdivision (a), 4732, 4736, and 4742,
subdivision (b). A health care provider or health care institution that intentionally
violates these sections is subject to liability to the aggrieved individual for damages plus
attorney fees. (§ 4742, subd. (a).)
"The main purpose of the Health Care Decisions Law is to provide 'procedures and
standards' governing 'health care decisions to be made for adults at a time when they are
incapable of making decisions on their own and [to] provide[] mechanisms for directing
their health care in anticipation of a time when they may become incapacitated.' "
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 539.) "In recognition of the
dignity and privacy a person has a right to expect, the law recognizes that an adult has the
fundamental right to control the decisions relating to his or her own health care, including
the decision to have life-sustaining treatment withheld or withdrawn." (§ 4650, subd.
(a).) Thus, among its provisions, the Health Care Decisions Law allows a person to make
58
future health care decisions by executing an advance health care directive. (§§ 4605,
4670.)
However, there are exceptions to a patient's right to control his or her own health
care. "A health care provider or health care institution may decline to comply with an
individual health care instruction or health care decision that requires medically
ineffective health care or health care contrary to generally accepted health care standards
applicable to the health care provider or institution." (§ 4735.) " 'Medically ineffective
health care,' . . . means treatment which would not offer the patient any significant
benefit." (Cal. Law Revision Com. com., 52B West's Ann. Prob. Code (2009 ed.) foll.
§ 4735, p. 453.)
1. Immunity Under Section 4740
The trial court found Defendants were immune from liability under section 4740
for alleged violations of the Health Care Decisions Law because Defendants acted in
good faith and in accordance with generally accepted health care standards. Plaintiffs
contend the trial court erred in finding Defendants were immune from liability.
Under section 4740, "[a] health care provider or health care institution acting in
good faith and in accordance with generally accepted health care standards applicable to
the health care provider or institution is not subject to civil or criminal liability or to
discipline for unprofessional conduct for any actions in compliance with [the Health Care
Decisions Law], including, but not limited to, . . . : [¶] . . . [¶] (d) Declining to comply
with an individual health care instruction or health care decision, in accordance with
Sections 4734 to 4736, inclusive." (Italics added.)
59
Plaintiffs first argue that for Defendants to have immunity under section 4740,
they had to satisfy three requirements: (1) Defendants must have acted in good faith, (2)
in accordance with generally accepted health care standards, and (3) " 'in compliance' "
with the Health Care Decisions Law. In other words, Plaintiffs read section 4740 to
mean Defendants cannot have immunity if they violated the provisions of Health Care
Decisions Law from which they seek immunity. However, statutory immunities apply
where the entity or individual claiming immunity "would otherwise be liable under
general principles of law." (Caldwell v. Montoya (1995) 10 Cal.4th 972, 985; Nasrawi v.
Buck Consultants LLC (2014) 231 Cal.App.4th 328, 340 [" 'Conceptually, the question of
the applicability of a statutory immunity does not even arise until it is determined that a
defendant . . . would be liable in the absence of such immunity.' "].) Plaintiffs'
interpretation of section 4740 would render the immunity meaningless because if a party
claiming immunity had strictly complied with the Health Care Decisions Law, there
would be no need for immunity. Immunities by their nature shield qualified parties from
liability for legal violations. Accordingly, we conclude Defendants are immune from
liability under section 4740 if they acted in good faith and in accordance with generally
accepted health care standards.
Here, Defendants produced evidence that they acted in good faith, and Plaintiffs
did not present contradictory evidence raising a triable issue of fact. In particular,
Defendants' experts stated Defendants' "actions, orders, recommendations and
communications were directed at providing only medically beneficial and medically
effective care to the patient without causing her further pain, suffering or harm."
60
Although the experts did not use the term "good faith," their statements establish the
substance of that requirement. Specifically, evidence that Defendants' actions were
directed at providing only medically beneficial and effective care to Elizabeth without
causing further pain, suffering, or harm is equivalent to a statement that they acted
consistent with their moral and ethical obligations to do no harm to their patient.
Moreover, Defendants presented evidence that the Appropriate Care Committee
informed Christopher that physicians could not provide Elizabeth with care they
determined was futile because doing so would be outside the bounds of their ethical
duties as physicians. Defendants' decisions to withhold the treatment requested in
Elizabeth's advance health care directive was consistent not only with their ethical duties,
but also with the Health Care Decisions Law. A physician may decline to comply with a
patient's health care instruction that requires medically ineffective health care, which is
treatment that would not offer the patient any significant benefit. (§ 4735; Cal. Law
Revision Com. com., 52B West's Ann. Prob. Code (2009 ed.) foll. § 4735, p. 453.)
Indeed, the California Legislature has recognized that "health care [that] does not
improve the prognosis for recovery may violate patient dignity and cause unnecessary
pain and suffering, while providing nothing medically necessary or beneficial to the
person." (Prob. Code, § 4650, subd. (b).) Defendants' evidence that they undertook care
of Elizabeth within the bounds of their ethical duties supports a finding that they acted in
good faith.
61
Plaintiffs did not present evidence that Defendants had a lack of good faith or
acted with a dishonest purpose. Thus, the uncontradicted evidence established
Defendants acted in good faith.
Similarly, the defense expert declarations were sufficient to establish Defendants
acted in accordance with generally accepted health care standards concerning
communication of health care decisions (§ 4730), recording information about Elizabeth's
capacity (§ 4732), fulfilling their duties upon declining to comply with Elizabeth's health
care instructions (§ 4736), and suggesting Elizabeth's family members change her health
care instructions, including by preparing a draft POLST (§ 4742, subd. (b)). Specifically,
Defendants presented evidence through expert declarations that they acted reasonably,
appropriately, and within the standard of care in performing these actions. Compliance
with the standard of care means Defendants acted in accordance with generally accepted
health care standards. (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234,
282 [standard of care is defined "as skill and knowledge 'ordinarily possessed and
exercised' in a profession"], italics omitted.)
Plaintiffs did not present admissible evidence to the contrary because, as we
previously explained, the trial court did not abuse its discretion in striking Dr. Boggeln's
conclusory opinions that Defendants violated the standard of care with respect to
communicating health care decisions, recording Elizabeth's capacity, recommending
Elizabeth not undergo advanced life support measures, and preparing a draft POLST that
changed Elizabeth's health care instructions. (See part IV.B.3.b, ante.)
62
Based on the foregoing, we conclude the trial court did not err in finding
Defendants were immune from liability under section 4740 for alleged violations of
sections 4730, 4732, 4736, and 4742, subdivision (b).
On Plaintiffs' remaining Probate Code claim, alleging Defendants violated section
4731, subdivision (a) by failing to request and maintain a copy of Elizabeth's advance
health care directive in her medical record, the parties produced conflicting evidence on
whether Defendants complied with the standard of care. Accordingly, the trial court
erred in concluding Defendants were immune from violations of section 4731,
subdivision (a). However, in their opening brief, Plaintiffs did not argue that the trial
court erred in granting summary judgment on their section 4731, subdivision (a) claim
against Drs. Lugo, Mehta, and Shieh. Thus, we need not consider section 4731,
subdivision (a) as it relates to these physicians. (See part V.A, ante.) As we explain
below, the trial court properly granted summary judgment in favor of the Scripps
Defendants and Dr. Ritt on Plaintiffs' section 4731, subdivision (a) cause of action.
2. Requesting and Maintaining Patient's Advance Directive (Section 4731)
Plaintiffs argue the trial court erred in granting summary judgment on their section
4731, subdivision (a) claim against the Scripps Defendants and Dr. Ritt because these
defendants knew of Elizabeth's advance health care directive, yet failed to request a copy
and maintain it in her chart.
Section 4731, subdivision (a), provides: "A supervising health care provider who
knows of the existence of an advance health care directive . . . shall promptly record its
existence in the patient's health care record and, if it is in writing, shall request a copy. If
63
a copy is furnished, the supervising health care provider shall arrange for its maintenance
in the patient's health care record." (Italics added.)
Preliminarily, we must consider whether the Scripps Defendants and Dr. Ritt were
supervising health care providers because section 4731 applies only to those providers.
Supervising health care providers are either the patient's primary physician or the health
care provider who has undertaken primary responsibility for the patient's health care.
(§ 4641.) A "[p]rimary physician" is "a physician designated by a patient or the patient's
agent, conservator, or surrogate, to have primary responsibility for the patient's health
care or, in the absence of a designation or if the designated physician is not reasonably
available or declines to act as primary physician, a physician who undertakes the
responsibility." (§ 4631.)
Because there is no indication in the record that Elizabeth or Christopher, as her
surrogate, designated a primary physician, we must consider whether Defendants
undertook primary responsibility for Elizabeth's health care.
The Scripps Defendants include Scripps, Knight, and Drs. Evans, Boyd-King,
Pund, and Ettari. Plaintiffs argue Knight qualified as a supervising health care provider
because she undertook primary responsibility for Elizabeth's discharge planning.
However, it was undisputed that, in this case, the physicians made transfer decisions and
recommendations, not Knight, who was merely acting to facilitate those decisions. By
assisting with Elizabeth's transfer to another facility, Knight did not undertake primary
responsibility for Elizabeth's health care. Thus, she was not a supervising health care
provider for purposes of section 4731.
64
Plaintiffs do not explain how Scripps, a hospital, qualified as a supervising health
care provider. The Health Care Decisions Law distinguishes between health care
providers (§ 4621) and health care institutions (§ 4619). Health care providers are
individuals providing health care, whereas health care institutions are institutions,
facilities, or agencies authorized to provide health care. While Scripps may be a health
care institution, it is not a health care provider within the meaning of the Health Care
Decisions Law because it is not an "individual." (§ 4621.) Accordingly, it is also not a
supervising health care provider. Plaintiffs have not provided authority to the contrary.
Plaintiffs contend Drs. Evans, Boyd-King, Pund and Ettari, as members of the
Appropriate Care Committee, were supervising health care providers because they
decided the care Elizabeth would receive while she was at Scripps. However, as we
previously explained, the evidence established the Appropriate Care Committee members
made recommendations to Elizabeth's treating physicians. The treating physicians could
accept or reject the committee's recommendations as they saw fit. Plaintiffs did not
present contradictory evidence. Further, the Appropriate Care Committee doctors did not
have a physician-patient relationship with Elizabeth. (See part V.B.4, ante.) Under these
circumstances, Drs. Evans, Boyd-King, Pund, and Ettari were not supervising health care
providers because they did not assume primary responsibility for Elizabeth's health care.
Plaintiffs also suggest Dr. Evans was a supervising health care provider because
he was chief of staff at Scripps and Drs. Ritt and Lugo sought his advice. Plaintiffs do
not cite to any authority stating a hospital's chief of staff is a supervising health care
provider solely by virtue of his or her role within the hospital. Further, Plaintiffs do not
65
cite to evidence establishing Dr. Evans undertook primary responsibility for Elizabeth's
health care.
We assume Dr. Ritt was a supervising health care provider for purposes of section
4731. We nevertheless conclude the trial court properly granted summary judgment in
Dr. Ritt's favor on Plaintiffs' section 4731, subdivision (a) cause of action.
Section 4731, subdivision (a) requires a supervising health care provider who
knows of a patient's advance health care directive to record its existence in the patient's
health care record, request a copy if it is in writing, and maintain a copy in the patient's
health care record if it is furnished. For a supervising health care provider to be subject
to liability for violating that section, the provider must have intentionally committed the
violation. (§ 4742 [stating "[a] health care provider . . . that intentionally violates this
part[, which includes section 4731,] is subject to liability to the aggrieved individual for
damages of two thousand five hundred dollars ($2,500) or actual damages resulting from
the violation, whichever is greater, plus reasonable attorney's fees"].)
Plaintiffs produced evidence Christopher informed Dr. Ritt of the contents of
Elizabeth's advance health care directive, but Dr. Ritt did not request a copy. Elizabeth's
health care record noted she had an advance directive. However, the record did not
include a copy of it. Instead, Elizabeth's chart contained a POLST, which confirmed
Christopher's representation of the contents of Elizabeth's advance directive.
According to Dr. Ritt's expert, Dr. Roeland, a POLST is often considered the same
as an advance directive, the reference in Elizabeth's chart to an advance directive likely
referred to a POLST, and Dr. Ritt was not required to request a copy of Elizabeth's
66
advance health care directive. Plaintiff's expert, Dr. Boggeln, contradicted Dr. Ritt's
expert by opining a POLST is different than an advance directive, and a physician who is
aware of an advance directive should request a copy of it even if the patient's file contains
a POLST and the patient's family has confirmed the contents of the advance directive.
Despite the conflicting opinions as to whether Dr. Ritt should have requested a
copy of Elizabeth's advance directive, the trial court did not err in granting summary
judgment because there was no evidence that Dr. Ritt intentionally violated section 4731,
subdivision (a), which was required to subject him to liability. (§ 4742.) The evidence
established Dr. Ritt knew of the contents of Elizabeth's advance health care directive
requiring advanced life support measures to prolong her life. He did not request a copy
of the advance directive because he believed Christopher's representations regarding its
contents. Dr. Ritt thought Elizabeth should not undergo advanced life support measures
because those measures would cause her harm and were not in her best interests.
Accordingly, Dr. Ritt spoke to Dr. Evans and initiated steps to involve the Appropriate
Care Committee. This evidence is inconsistent with a finding that Dr. Ritt intentionally
violated section 4731. Plaintiffs did not produce contradictory evidence concerning Dr.
Ritt's intent.
Moreover, the purpose of the recording requirement in section 4731 is to "reduce[]
the risk that a health-care provider or institution, or agent, [conservator] or surrogate, will
rely on an outdated individual instruction or the decision of an individual whose authority
has been revoked." (Cal. Law Revision Com. com., 52B West's Ann. Prob. Code (2009
ed.) foll. § 4731, p. 448.) There was no evidence that Dr. Ritt, or any other health care
67
provider, relied on an outdated instruction or the decision of an individual whose
authority had been revoked. To the contrary, Elizabeth's health care providers were
aware of Elizabeth's life support wishes and Christopher's ability to make decisions for
her. No evidence established Dr. Ritt's failure to request a copy of Elizabeth's advance
health care directive caused her injury or death.
Based on the foregoing, we conclude the trial court properly granted summary
judgment in favor of the Scripps Defendants and Dr. Ritt on Plaintiffs' cause of action for
violation of section 4731, subdivision (a).
D. Plaintiffs' Negligent Misrepresentation Claim
Plaintiffs argue the trial court erred in finding there was no triable issue of fact on
their negligent misrepresentation claim against Scripps, Knight, and Drs. Evans, Ettari,
Pund, Ritt, and Mehta. Specifically, Plaintiffs contend Drs. Evans, Ettari, Pund, Ritt, and
Mehta misrepresented that Elizabeth would receive pain medication, nutrition, and fluids;
a Scripps administrator and Dr. Ritt misrepresented that they would honor Elizabeth's
advance health care directive and provide her treatment consistent with it; and Knight
falsely represented Elizabeth would be immediately transferred to another facility. We
address each alleged misrepresentation in turn.
"For a claim of negligent misrepresentation, '[a] plaintiff must prove the following
in order to recover[:] "[M]isrepresentation of a past or existing material fact, without
reasonable ground for believing it to be true, and with intent to induce another's reliance
on the fact misrepresented; ignorance of the truth and justifiable reliance on the
misrepresentation by the party to whom it was directed; and resulting damage.
68
[Citation.]" [Citation.]' " (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 175.)
"[A] positive assertion is required; an omission or an implied assertion or representation
is not sufficient." (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158
Cal.App.4th 226, 243 (Apollo).)
1. Representations Regarding Pain Medication, Nutrition, and Fluids
Plaintiffs contend Drs. Evans, Ettari, Pund, Ritt, and Mehta misrepresented
Elizabeth would receive pain medication and life-sustaining nutrition and fluids. As we
shall explain, the evidence on which Plaintiffs rely does not support their negligent
misrepresentation claim against these defendants.
Plaintiffs first cite to Christopher's testimony that the Appropriate Care Committee
assured him Elizabeth would continue to receive pain medication, fluids, and nutrition.
The Appropriate Care Committee documented its recommendations, including that
appropriate care for Elizabeth included treatment to preserve her comfort, such as
oxygen, intravenous fluids, and pain medications. Further, the Appropriate Care
Committee documented that it did not object to continuing artificial nutrition. Plaintiffs
have not pointed to any evidence that members of the Appropriate Care Committee did
not have reasonable grounds to believe its representations were true or that treating
physicians would not follow its recommendations.
Further, Plaintiffs have not shown they justifiably relied on the Appropriate Care
Committee's representations in making decisions regarding Elizabeth's care or transfer.
In their fourth amended complaint, Plaintiffs alleged that in reliance on Defendants'
representations, Elizabeth remained at Scripps. However, Plaintiffs do not dispute that
69
when the Appropriate Care Committee informed Christopher of their recommendations,
he reiterated that he wanted Elizabeth transferred. Accordingly, Plaintiffs failed to show
a triable issue of fact on justifiable reliance as to members of the Appropriate Care
Committee.
Plaintiffs next cite to Christopher's testimony that he "may have talked Dr. Mehta
about [Elizabeth's] pain medication," but he did not recall what Dr. Mehta said to him.
This evidence is insufficient to create a triable issue of fact on Plaintiffs' negligent
misrepresentation claim because such claim requires a positive assertion of a
misrepresentation. (Apollo, supra, 158 Cal.App.4th at p. 243.)
We discuss Dr. Ritt's alleged misrepresentations about providing Elizabeth with
pain medications, nutrition, and fluids below.
2. Representations Regarding Compliance with Elizabeth's Advance
Directive
Plaintiffs argue a Scripps administrator and Dr. Ritt misrepresented they would
honor Elizabeth's advance health care directive and provide her treatment consistent with
it. We reject Plaintiffs' argument because it is not supported by the evidence they cite.
Plaintiffs first point to Christopher's testimony that a Scripps administrator stated
to him that she would have a discussion with Dr. Evans about continuing Elizabeth's
treatment consistent with Elizabeth's advance health care directive. Christopher
understood the administrator's representation to mean that the Appropriate Care
Committee's recommendation would be changed.
70
The Scripps administrator's statement to Christopher that she would have a
discussion with Dr. Evans does not constitute a positive assertion that Elizabeth's
physicians would comply with her advance health care directive or that the Appropriate
Care Committee would change its recommendations. "Parties cannot read something into
a neutral statement in order to justify a claim for negligent misrepresentation." (Diediker
v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 297.)
Plaintiffs next assert Dr. Ritt represented Elizabeth's advance health care directive
would be honored. To support this claim, Plaintiffs cite to Christopher's testimony that
Dr. Ritt "expressed concerns regarding honoring the advanced directive, but he did not
say that the advanced directive would not be honored." This testimony does not support
a claim for negligent misrepresentation because it does not amount to a positive assertion
that Dr. Ritt would follow Elizabeth's advance health care directive.
Plaintiffs also cite to testimony that Christopher understood from a conversation
with Dr. Ritt that Elizabeth would continue to receive artificial nutrition, hydration, and
pain medications consistent with her advance health care directive. Plaintiffs do not point
to a positive assertion by Dr. Ritt. Further, Plaintiffs do not dispute that Dr. Ritt placed
orders for Elizabeth to receive tube feedings and intravenous pain medications. These
orders were consistent with Elizabeth's advance health care directive and her family's
wishes. Accordingly, even if Dr. Ritt represented Elizabeth would receive pain
medication, nutrition, and hydration consistent with her advance health care directive, he
acted in accordance with that representation, belying Plaintiffs' misrepresentation claim.
71
3. Representations Regarding Elizabeth's Transfer to Another Facility
Plaintiffs contend Knight negligently misrepresented on February 20, 2013, that
Elizabeth would be immediately transferred to Emeritus or another facility. The evidence
Plaintiffs cite does not support a claim for negligent misrepresentation. First, Plaintiffs
point to Knight's case management notes stating she had a conversation with Christopher,
who expressed his desire to have Elizabeth moved to another facility. The notes reveal
Knight "offered to facilitate as able" and recommended Christopher contact Elizabeth's
insurance for assistance in identifying a facility that would accept Elizabeth's care. This
evidence does not reveal an affirmative misrepresentation that Elizabeth would be
immediately transferred.
Second, Plaintiffs point to Christopher's testimony that he may have had a
conversation with Knight on February 19, 2013. The testimony Plaintiffs cite does not
reveal any details about Knight's conversation with Christopher. Accordingly, it does not
support a claim for negligent misrepresentation.
VI. Motion for Reconsideration
Plaintiffs argue the trial court erred in denying their motion to reconsider the
summary judgment rulings in favor of the Scripps Defendants and Dr. Ritt.10 We
disagree.
10 Plaintiffs moved for reconsideration of the order granting summary judgment in
favor of the Scripps Defendants and Dr. Ritt. The trial court entered judgment in favor of
the Scripps Defendants and Dr. Ritt before ruling on Plaintiffs' motion for
reconsideration. "[T]he entry of judgment had the effect of denying [Plaintiffs'] motion
72
Code of Civil Procedure section 1008 allows any party affected by a court's order
to request that court reconsider the matter "based upon new or different facts,
circumstances, or law." A party seeking reconsideration of a court's order under Code of
Civil Procedure section 1008 must not only show new or different facts, circumstances or
law, but also must give a satisfactory explanation for not producing such facts or
information at the original hearing. (The New York Times Co. v. Superior Court (2005)
135 Cal.App.4th 206, 212-213 (New York Times); Garcia v. Hejmadi (1997) 58
Cal.App.4th 674, 690.) Where evidence addressed in the motion for reconsideration is
available to a party before the initial motion is heard, such evidence is not considered
"new" for purposes of a motion for reconsideration. (Lucas v. Santa Maria Public
Airport Dist. (1995) 39 Cal.App.4th 1017, 1028; Garcia, at pp. 689-690.) We review the
court's ruling on a motion for reconsideration under the abuse of discretion standard.
(New York Times, at p. 212; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
Plaintiffs argue they presented new and different facts warranting reconsideration
that were not available at the time they filed their opposition to the Scripps Defendants'
and Dr. Ritt's summary judgment motions. As "new or different facts," Plaintiffs pointed
to deposition testimony from witnesses deposed after Plaintiffs filed their oppositions or
whose deposition transcripts were not available at that time. Plaintiffs contended
deposition transcripts were not available for three defense witnesses: Tamara Winkler,
Pamela Letzkus, and Jill Platt.
[for reconsideration] by implication." (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th
1233, 1238.)
73
Plaintiffs had completed or were in the process of scheduling the depositions of
Winkler, Letzkus, and Platt before filing their oppositions to the Scripps Defendants' and
Dr. Ritt's summary judgment motions. Plaintiffs did not request to continue the summary
judgment hearings on the basis of the pending deposition transcripts. (New York Times,
supra, 135 Cal.App.4th at p. 215 [holding that evidence was not new or different within
the meaning of Code Civ. Proc., § 1008 where it was revealed in depositions held two
business days before the hearing, and noting that the moving party could have moved for
a continuance to present the deposition transcripts to the court if they were not ready at
the time of the hearing].) Moreover, Plaintiffs did not explain how facts obtained from
Winkler, Letzkus, and Platt's depositions constituted new evidence impacting the analysis
of the Scripps Defendants' and Dr. Ritt's summary judgment motions or how the facts
were materially different from those already presented.
As "new or different facts," Plaintiffs also argued they had obtained a
supplemental declaration from Dr. Boggeln. Plaintiffs did not explain why they could
not have obtained a supplemental declaration from their own expert before they filed
their opposition to the Scripps Defendants' and Dr. Ritt's summary judgment motions.
Further, Plaintiffs did not set forth what information in Dr. Boggeln's supplemental
declaration constituted new or different facts warranting reconsideration of the Scripps
Defendants' and Dr. Ritt's summary judgment motions.
Based on the foregoing, we conclude the trial court did not abuse its discretion by
implicitly denying Plaintiffs' motion for reconsideration.
74
VII. Costs and Expert Fees Awards
A. Trial Court's Costs Awards
Plaintiffs argue the trial court abused its discretion by awarding Defendants
impermissible costs. As we shall explain, we reject Plaintiffs' arguments.11
"Except as otherwise expressly provided by statute, a prevailing party is entitled as
a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., § 1032,
subd. (b).) Code of Civil Procedure section 1033.5 sets forth the items of costs that may
or may not be recoverable in a civil action. "An item not specifically allowable under
subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in
the discretion of the court if 'reasonably necessary to the conduct of the litigation rather
than merely convenient or beneficial to its preparation.' " (Ladas v. California State
Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).)
"If the items appearing in a cost bill appear to be proper charges, the burden is on
the party seeking to tax costs to show that they were not reasonable or necessary. On the
other hand, if the items are properly objected to, they are put in issue and the burden of
proof is on the party claiming them as costs. [Citations.] Whether a cost item was
11 Drs. Ritt, Lugo, Mehta, and Shieh argue this Court does not have jurisdiction to
review the trial court's orders awarding costs because Plaintiffs did not separately appeal
those orders. However, Plaintiffs appealed judgments that awarded Defendants
unspecified costs and provided for a later determination of the amount. "[W]hen a
judgment awards costs and fees to a prevailing party and provides for the later
determination of the amounts, the notice of appeal subsumes any later order setting the
amounts of the award." (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)
Accordingly, this Court has jurisdiction to consider the trial court's costs awards.
75
reasonably necessary to the litigation presents a question of fact for the trial court and its
decision is reviewed for abuse of discretion." (Ladas, supra, 19 Cal.App.4th at p. 774.)
Based on these principles, we address the various cost items challenged by
Plaintiffs.
1. Dr. Lugo's Documentation Regarding Costs
Plaintiffs contend Dr. Lugo failed to serve them with documents supporting his
opposition to their motion to tax costs. The record contains a proof of service, dated
December 29, 2016, for Dr. Lugo's notice of lodgment in support of his opposition to
Plaintiffs' motion to strike or tax costs. The proof of service states Dr. Lugo served
Plaintiffs by both mail and facsimile transmission. Counsel for the Estate, Clenton, and
McDermet submitted a declaration in which he stated he had not received Dr. Lugo's
notice of lodgment by January 6, 2017.
"The filing of a proof of service creates a rebuttable presumption that the service
was proper." (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789,
795.) "Whether that presumption has been rebutted is a question of fact to be resolved in
the trial court." (Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011 (Glasser).)
Here, the trial court's order granting in part and denying in part Plaintiffs' motion
to tax costs did not make a specific finding on the issue of whether Plaintiffs had been
properly served with Dr. Lugo's notice of lodgment. The hearing on the motion was not
reported. We presume the trial court found service was proper. (Estate of Fain (1999) 75
Cal.App.4th 973, 992.) Based on the proof of service in the record, substantial evidence
76
supports a finding that service was proper. (See Glasser, supra, 64 Cal.App.4th at pp.
1010-1011.)
We also reject Plaintiffs' argument that Dr. Lugo did not timely file his notice of
lodgment in support of his opposition to Plaintiffs' motion to tax costs. Plaintiffs cite no
authority for their argument. Further, Plaintiffs do not explain how they were prejudiced
by Dr. Lugo's late filing of his notice of lodgment and nothing in the record suggests
Plaintiffs requested a continuance based on their claim that they did not receive Dr.
Lugo's documents. No prejudice appears on the face of the record.
2. Reasonableness of Deposition Fees
Plaintiffs contend the trial court erred by making no inquiry into the
reasonableness of Defendants' deposition costs. Plaintiffs cite to a declaration from
counsel for the Estate, McDermet, and Clenton, stating it is typical practice in the
community for multiple parties on the same side of a case to share a single copy of a
deposition transcript to reduce costs, and reporters frequently agree to discount their
published copy rates when parties order multiple copies of the same transcript. The
hearings on Plaintiffs' motions to tax costs were not reported and the trial court's order
did not make specific findings regarding the reasonableness of Defendants' alleged failure
to share deposition transcripts. We presume the trial court considered the reasonableness
of the costs Defendants incurred for deposition transcripts and found the costs reasonable
in awarding them. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187.) Further, although it may be common practice for parties on the same side of a
77
case to share transcripts, there is no suggestion in the record that it was unreasonable for
Defendants to order separate copies.
Plaintiffs also challenge the trial court's award to Dr. Mehta and the Scripps
Defendants of "technology fees" to take the depositions of McDermet and Christopher.
To support their argument, Plaintiffs cite to various invoices in the record. Plaintiffs did
not cite to the portion of their motions to tax the Scripps Defendants and Dr. Mehta's
costs wherein Plaintiffs challenged technology fees. Based on our review of Plaintiffs'
motions, they did not object to any claimed technology fees incurred by Dr. Mehta and
the Scripps Defendants.12
Plaintiffs also argue that for "deposition transcripts ordered by the Scripps
Defendants, Ritt, Mehta, and Shieh, the trial court failed to distinguish what was included
in the final total amount (i.e., taxes, finance charges, and price per page)." Plaintiffs cite
no authority, and we have found none, for the proposition that the trial court was required
to provide a breakdown of its award for deposition transcripts. Accordingly, we find no
merit to Plaintiffs' argument.
Lastly, Plaintiffs argue they are unable to address whether Dr. Lugo's claimed
deposition costs are consistent with the trial court's ruling because they never received
12 A motion to tax costs must specify the item objected to and state why the item is
objectionable. (Cal. Rules of Court, rule 3.1700(b)(2).) "As a general rule, 'The
reviewing court is not required to make an independent, unassisted study of the record in
search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel
to refer the reviewing court to the portion of the record which supports appellant's
contentions on appeal. [Citation.] If no citation 'is furnished on a particular point, the
court may treat it as waived.' " (Guthrey v. State of California (1998) 63 Cal.App.4th
1108, 1115; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
78
documents supporting Dr. Lugo's opposition to Plaintiffs' motion to tax costs. As we
previously explained, there was substantial evidence in the record supporting Dr. Lugo's
service of his notice of lodgment in support of his opposition to Plaintiffs' motion to tax
costs.
3. Subpoenas
Plaintiffs argue the trial court erred by failing to tax the Scripps Defendants an
additional $402 and Dr. Ritt an additional $387 for costs associated with multiple
subpoenas that resulted in no records. Plaintiffs cite to more than 60 pages of subpoena
invoices in the record without providing an explanation as to how they calculated the
amounts they contend should have been taxed. Further, Plaintiffs cite to no authority for
their argument. We will not develop Plaintiffs' argument for them or engage in an
unguided calculation to determine how Plaintiffs arrived at the amounts of $402 for the
Scripps Defendants and $387 for Dr. Ritt. (See Falcone & Fyke, supra, 164
Cal.App.4th at p. 830.)
4. Jury Fees
Plaintiffs argue the trial court erred by ordering them to pay for multiple payments
of jury fees for Defendants' side of the case.
Code of Civil Procedure section 631, subdivision (b) provides: "At least one party
demanding a jury on each side of a civil case shall pay a nonrefundable fee of one
hundred fifty dollars ($150), unless the fee has been paid by another party on the same
side of the case. The fee shall offset the costs to the state of providing juries in civil
cases. If there are more than two parties to the case, for purposes of this section only, all
79
plaintiffs shall be considered one side of the case, and all other parties shall be considered
the other side of the case." The fees are nonrefundable. (Code Civ. Proc., § 631.3, subd.
(c).) However, jury fees are recoverable as costs to the prevailing party. (Code Civ.
Proc., § 1033.5, subd. (a)(1).)
Plaintiffs did not dispute Defendants were entitled to recover jury fees under Code
of Civil Procedure section 1033.5, subdivision (a)(1). Instead, they argued they should
not be responsible for multiple jury deposits because Code of Civil Procedure section
631, subdivision (b) required only one defendant to make a jury deposit. Although Code
of Civil Procedures section 631, subdivision (b) provides that "[a]t least one party
demanding a jury on each side of a civil case" shall pay a nonrefundable jury deposit, the
statute does not prevent multiple parties on one side of a case from paying jury deposits.
Defendants produced evidence they made separate $150 jury fee deposits and that it is
customary and reasonable for each defendant to make a separate deposit of advanced jury
fees to prevent an inadvertent waiver of the right to a jury. Plaintiffs did not produce
contrary evidence. Accordingly, the trial court did not abuse its discretion by awarding
Defendants their jury fees.
5. Reasonableness of Expert Fees
Plaintiffs argue the trial court erred by not requiring Defendants to show their
expert fees were reasonable. Plaintiffs' contention is based on a comparison of the hours
Defendants' experts incurred in this case compared to experts in other cases. Plaintiffs
rely on Evers v. Cornelson (1984) 163 Cal.App.3d 310 and Chaaban v. Wet Seal, Inc.
(2012) 203 Cal.App.4th 49. In Evers, plaintiff sued for damages arising out of an
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automobile accident and her expert spent eight and a half hours on trial preparation,
which the court found was reasonable. (Evers, at pp. 314, 317.) In Chaaban, the plaintiff
sued her employer for wrongful termination in violation of public policy. (Chaaban, at p.
51.) The employer's expert spent seven hours reviewing depositions and records, which
the court determined was reasonable. (Id. at p. 56, fn. 6.)
A comparison of Evers and Chaaban to the case before us does not show
Defendants' expert fees were unreasonable. As the trial court noted, Plaintiffs sued
Scripps, numerous physicians, and a nurse, alleging medical malpractice and several
Probate Code violations. The complexities of each case are different and no precise
formula can be drawn from prior cases to determine the reasonableness of expert hours.
Accordingly, we reject Plaintiffs' argument that Defendants' expert fees were
unreasonable merely because the experts spent more time on the case than experts in
other cases.
Further, Plaintiffs did not argue in their motions to tax costs that the hours
Defendants' experts incurred were unreasonable because they were excessive when
compared to other cases. It is well settled that a point not raised in the trial court is
barred on appeal. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784,
1794; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 685.)
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B. Trial Court's Expert Fees Award
Plaintiffs argue the trial court abused its discretion in awarding Defendants expert
fees under Code of Civil Procedure section 998 and refusing to scale down fees based on
the parties' financial positions.
Under Code of Civil Procedure section 998 "any party may serve an offer in
writing upon any other party to the action to allow judgment to be taken or an award to be
entered in accordance with the terms and conditions stated at that time. . . . [¶] . . . [¶] If
an offer made by a defendant is not accepted and the plaintiff fails to obtain a more
favorable judgment or award, the plaintiff shall . . . pay the defendant's costs from the
time of the offer. In addition, . . . the court . . . , in its discretion, may require the plaintiff
to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . ."
(Code Civ. Proc., § 998, subds. (b) & (c)(1).) The purpose of the statute "is to encourage
the settlement of litigation without trial." (Jones v. Dumrichob (1998) 63 Cal.App.4th
1258, 1262 (Jones).)
Between September and March 2015, Defendants served Plaintiffs offers to
compromise for a dismissal in exchange for a waiver of costs. Based on the record
before us, Dr. Ritt served his offers to compromise on only the Estate and Clenton.
Plaintiffs did not accept the offers. Thus, in awarding Defendants their costs, the trial
court awarded Defendants expert fees under Code of Civil Procedure section 998. In
doing so, the court found Defendants made good faith and reasonable offers to
compromise to Plaintiffs.
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Plaintiffs raise several arguments challenging the validity of the Code of Civil
Procedure section 998 offers and the trial court's awards of expert fees. We address each
of Plaintiffs' arguments below.
1. Reliance on Statements Made During Mediation
Plaintiffs argue that in awarding Defendants expert fees, the trial court erred by
relying on confidential statements made during mediation. Plaintiffs do not describe the
relevant statements, but cite to various pages in the record. Based on our review of
record pages cited, we set forth our understanding of Plaintiffs' argument.
In opposition to Plaintiffs' motions to tax costs, the Scripps Defendants and Drs.
Ritt and Lugo submitted declarations from counsel stating that during a mediation in
August 2014, Defendants conveyed they had evaluated the case to be one of very
unlikely liability for virtually the same reasons set forth in their summary judgment
motions and because nothing Defendants were alleged to have done or failed to do would
have resulted in a different outcome for Elizabeth, given her terminal status. The trial
court's orders on Plaintiffs' motions to tax costs stated, "[Defendants'] offers for a waiver
of cost were made very early on in the litigation. Defendants maintained that [P]laintiffs
could not show causation because their mother was terminally ill when she was placed in
their care. The court eventually agreed that [P]laintiffs had not shown causation and
summary judgment was granted in favor of [all] defendants."
In general, statements made during a mediation are confidential. (Evid. Code,
§ 1119.) Here, although the trial court's order stated "Defendants had maintained that
[P]laintiffs could not show causation because their mother was terminally ill," there is no
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basis to conclude the trial court relied on statements protected by the mediation
confidentiality. Elizabeth's terminal illness and the fact that Defendants offered to waive
costs early in the litigation were not disputed or confidential matters. Based on the
record, it is clear the parties disputed causation throughout the litigation. Further, even if
the trial court referenced a confidential statement, the trial court's expert fees award was
not based on that statement alone. Rather, the trial court based its expert fees award on
numerous factors, including the complexity of the case, the number of parties, that
Plaintiffs should have expected a vigorous defense by experienced lawyers, that offers to
waive costs were made very early on in the litigation, and this was a highly contested
case. We find no basis to reverse the expert fee awards based on the trial court's alleged
reliance on statements protected by the mediation confidentiality.
2. Good Faith and Reasonableness
Plaintiffs argue Defendants' offers to compromise under Code of Civil Procedure
section 998 were invalid because they were not made in good faith and were
unreasonable. We are not persuaded by Plaintiffs' arguments.
"To effectuate the purpose of the statute, a [Code of Civil Procedure] section 998
offer must be made in good faith to be valid. [Citation.] Good faith requires that the
pretrial offer of settlement be 'realistically reasonable under the circumstances of the
particular case. Normally, therefore, a token or nominal offer will not satisfy this good
faith requirement, . . . ' [Citation.] . . . One having no expectation that his or her offer
will be accepted will not be allowed to benefit from a no-risk offer made for the sole
purpose of later recovering large expert witness fees." (Jones, supra, 63 Cal.App.4th at
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pp. 1262-1263.) However, "even a 'modest settlement offer' may be in good faith if it is
believed the defendant has a significant likelihood of prevailing at trial." (Id. at p. 1264
[finding offer of waiver of costs was made in good faith where the "offer carried a
significant value to appellants because, if accepted, it would have eliminated appellants'
exposure to the very costs" subject to the appeal].) "We review the trial court's award of
expert witness fees as a [Code of Civil Procedure] section 998 discretionary item of costs
using an abuse of discretion standard." (Id. at p. 1262.)
Here, the trial court found "[D]efendants' offers carried a significant value to
[P]laintiffs because, if accepted, it would have eliminated their exposure to the very costs
which are the subject of [Plaintiffs'] motions [to tax costs], a sum they can hardly claim
now to be de minimis." Plaintiffs contend the trial court erred by evaluating the value of
Defendants' offers using anticipated costs rather than the value at the time of the offer.
Essentially, Plaintiffs suggest that for the offers to have had value, Defendants must have
already incurred significant costs. Nothing in Code of Civil Procedure section 998
requires that a defendant must have incurred substantial costs for his or her offer to waive
costs to have value. Rather, "[w]hen a defendant perceives himself to be fault free and
has concluded that he has a very significant likelihood of prevailing at trial, it is
consistent with the legislative purpose of [Code of Civil Procedure] section 998 for the
defendant to make a modest settlement offer. If the offer is refused, it is also consistent
with the legislative intent for the defendant to engage the services of experts to assist him
in establishing that he is not liable to the plaintiff. It is also consistent with the legislative
purpose under such circumstances to require the plaintiff to reimburse the defendant for
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the costs thus incurred." (Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d
704, 710-711.)
Plaintiffs' argument ignores that Defendants' offers did have significant value at
the time they were made. As the trial court noted, Plaintiffs sued a hospital, nine
physicians, and a nurse, alleging numerous causes of action, including various Probate
Code violations and medical malpractice based on several alleged breaches of the
standard of care. Based on the complexity of Plaintiffs' claims and the need for expert
testimony in medical malpractice cases such as this one (Johnson v. Superior Court
(2006) 143 Cal.App.4th 297, 305), Plaintiffs should have expected that Defendants would
incur significant postoffer expert costs. The fact that Defendants had not incurred
significant costs at the time they made their offers does not render the offers lacking in
good faith. We find no abuse of discretion in the trial court's consideration of the
significant costs Defendants were likely to incur if the action proceeded.
Plaintiffs further contend Defendants' offers to compromise were mere token
offers because they were made after a failed mediation and before significant discovery
had occurred. Plaintiffs argue that without the benefit of discovery, Defendants could not
have reasonably believed they had no liability. Plaintiffs do not cite to any authority, and
we have found none, stating discovery is required before a defendant makes an offer to
compromise. When they made their offers, Defendants knew of Plaintiffs' claims against
them, had engaged counsel, and had likely evaluated their liability in preparation for
mediation. "We are not obliged to ignore the reality that [Defendants] prevailed" in this
case with no finding of liability. (Jones, supra, 63 Cal.App.4th at p. 1264.) The "result
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itself constitutes prima facie evidence that the offer was reasonable, and the burden of
proving an abuse of discretion is on appellants, as offerees, to prove otherwise." (Ibid.)
Plaintiffs did not meet that burden.
Lastly, Plaintiffs contend they lacked information necessary to evaluate
Defendants' offers at the time they were made because Plaintiffs had only portions of
Elizabeth's medical records and had taken no depositions. The fact that extensive
discovery had not yet occurred does not render Defendants' offers to compromise
unreasonable or lacking in good faith.
We find the trial court acted well within its discretion in awarding Defendants
their expert witness fees.
3. Scaling Based on the Parties' Financial Positions
Plaintiffs contend the trial court failed to recognize its discretion to scale down its
award under Code of Civil Procedure section 998 based on the parties' financial
positions.
Code of Civil Procedure "[s]ection 998 requires the amount [of a costs award] to
be 'reasonable.' Given the purpose of the statute, reasonableness must be measured by
considerations beyond whether it was reasonable for the offering party to have incurred
the expense. . . . [T]he trial court also must take account of the offeree's economic
resources in determining what is a 'reasonable' cost award. [¶] If the goal of Code of
Civil Procedure section 998 is to encourage fair and reasonable settlements—and not
settlements at any cost—trial courts in exercising their discretion must ensure the
incentives to settle are balanced between the two parties. Otherwise less affluent parties
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will be pressured into accepting unreasonable offers just to avoid the risk of a financial
penalty they can't afford. Thus, when two competing parties possess vastly disparate
economic resources, this may require the trial courts to 'scale' the financial incentives (in
this instance the section 998 cost awards) to the parties' respective resources." (Seever v.
Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1561-1562.)
Here, Plaintiffs contend the trial court did not recognize its discretion to scale
down its expert fees award under Code of Civil Procedure section 998. We reject this
argument. The trial court considered Plaintiffs' argument and found scaling was not
appropriate because under Plaintiffs' theory, "a large entity with a high net worth would
. . . never be entitled . . . to costs and that's not what the law intended. [¶] In addition to
that, as a practical matter, [the court] think[s] [P]laintiffs were put on notice that this
could be quite costly. And that was something that [Plaintiffs were] aware of in
proceeding with this case that there would be a possibility that they would be responsible
for costs. The [c]ourt has made every effort to . . . make adjustments where it could.
But the bottom line is that [D]efendants are entitled to costs and they should get them."
Thus, the trial court clearly recognized its discretion to scale down costs based on the
parties' respective financial resources. It simply chose not to do so.
Further, we note that although the total costs award to Defendants was
approximately $160,000, the trial court taxed costs where they were unreasonable or
improper, and ultimately awarded expert fees in the amount of $6,000 to the Scripps
Defendants, $6,000 to Dr. Ritt, $9,000 to Dr. Mehta, $6,000 to Dr. Lugo, and $3,975 to
Dr. Shieh. Based on the expert-driven nature of this case and its complexity, the expert
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fees the court awarded Defendants were reasonable and we find no abuse of discretion in
the trial court's awards.
4. Dr. Ritt's Offers to Compromise
Plaintiffs argue the trial court erred in holding McDermet and Christopher
responsible for Dr. Ritt's expert fees. We agree.
Code of Civil Procedure section 998, subdivision (c)(1) allows a defendant who
made a reasonable offer to compromise to a plaintiff that was rejected to recover from
that plaintiff postoffer costs for the services of expert witnesses. The statute does not
authorize a defendant to recover expert fees from a plaintiff to whom defendant did not
offer to compromise. A court cannot award costs not authorized by statute. (Perko's
Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 243.)
Here, Plaintiffs contend Christopher and McDermet cannot be held responsible for
Dr. Ritt's expert fees under Code of Civil Procedure section 998 because Dr. Ritt never
served Christopher and McDermet with offers to compromise. Dr. Ritt did not respond to
Plaintiffs' argument. Based on our review of the record, Dr. Ritt served offers to
compromise on only Clenton and the Estate. Accordingly, the trial court erred in
awarding Dr. Ritt his expert fees as against Christopher and McDermet.
VIII. Trial Court's Order Adding Parties
In May 2014, Clenton, on behalf of himself and the Estate, filed the initial
complaint in this action. Thereafter, the Scripps Defendants and Dr. Ritt sought
protective orders to stay their depositions until all necessary parties, including all known
heirs, appeared in the action and the Estate was represented by counsel. The court
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deemed the complaint amended to add Christopher and McDermet as parties. Plaintiffs
filed a first amended complaint, identifying the Estate, Clenton, Christopher, and
McDermet as plaintiffs in the action.
Plaintiffs argue the trial court abused its discretion by delaying depositions until
the complaint was amended to name all of Elizabeth's known heirs. We reject this
argument.
"California law provides that either the heirs of a decedent, or the personal
representative on behalf of the heirs, may bring a single joint indivisible action for
wrongful death." (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 696
(Smith).) "Because there is only a single action for wrongful death, an heir bringing the
action should join all known heirs. If an heir refuses to join as a plaintiff, he or she may
be named as a defendant, so all heirs are before the court in the same action. [Citation.]
However, an heir named as a defendant in a wrongful death action is, in reality, a
plaintiff." (Id. at p. 697.)
"The court, for good cause shown, may make any order that justice requires to
protect any . . . deponent . . . from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense." (Code Civ. Proc., § 2025.420, subd. (b).)
"[M]anagement of discovery lies within the sound discretion of the trial court." (People
v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987.)
Here, the Scripps Defendants and Dr. Ritt sought protective orders to prevent
depositions from going forward until all known heirs were added to the action. During a
hearing, the trial court and counsel discussed amending the complaint, and the court
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deemed the complaint amended to add Christopher and McDermet as parties. At the
same time, the court took the Scripps Defendants' and Dr. Ritt's motions for protective
order off calendar. We find no abuse of discretion in the trial court's order.
Christopher and McDermet were known wrongful death heirs, and thus were
required parties to the action, either as plaintiffs or defendants. (Smith, supra, 41
Cal.App.4th at pp. 697-698.) If they were not added to the complaint prior to the
challenged depositions, the deponents could have been subject to multiple depositions.
The discussion between the court and counsel referenced in the court's order about
amending the complaint was not reported. Thus, we have no basis for concluding the
trial court abused its discretion.
DISPOSITION
The judgment in favor of Dr. Ritt is reversed to the extent it holds Christopher and
McDermet responsible for Dr. Ritt's expert costs in the amount of $6,000. In all other
respects, the judgments are affirmed. Defendants are entitled to costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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Filed 5/11/18
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER ALEXANDER et al., D071001
Plaintiffs and Appellants,
v. (Super. Ct. No.
37-2014-00016257-CU-MM-CTL)
SCRIPPS MEMORIAL HOSPITAL LA
JOLLA et al.,
ORDER CERTIFYING OPINION
Defendants and Respondents. FOR PARTIAL PUBLICATION
THE COURT:
The opinion filed April 16, 2018, was not certified for publication. It appearing
the opinion meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), the requests pursuant to California Rules of Court, rule 8.1105(a), for
publication are GRANTED, in part.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), with the exception of Parts I.D, I.E,
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of Parts I.D, I.E, II, III, IV.C, V.A, V.B.1, V.B.2, V.B.3,
V.B.5, V.D, VI, VII and VIII of the Discussion.
92
II, III, IV.C, V.A, V.B.1, V.B.2, V.B.3, V.B.5, V.D, VI, VII and VIII of the Discussion,
and is ordered published in the Official Reports.
HALLER, Acting P. J.
Copies to: All parties
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Alexander v. Scripps Memorial Hospital La Jolla
Combined Opinion