Donnell v. Four Seasons Healthcare etc. CA2/5

Filed 1/29/21 Donnell v. Four Seasons Healthcare etc. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DEAN DONNELL, B302767
Individually and as Personal
Representative, etc., (Los Angeles County
Super. Ct. No. BC664101)
Plaintiffs and
Appellants,

v.

FOUR SEASONS
HEALTHCARE &
WELLNESS CENTER, LP et
al.

Defendants and
Respondents.
 APPEAL from a judgment of the Superior Court of Los
Angeles County, Virginia Keeny, Judge. Reversed, with
directions.
Medvei Law Group, Sebastian M. Medvei, for Plaintiffs
and Appellants.
Clark Hill, Richard H. Nakamura Jr., Marc S. Katz,
Marissa E. Mendoza, for Defendants and Respondents.
__________________________

Plaintiffs and appellants Dean Donnell, individually
and in his purported capacity as personal representative of
the estate of his wife Valerie Donnell, appeals from a
judgment after an order granting summary judgment in
favor of defendants and respondents Four Seasons
Healthcare & Wellness Center, LP, and Rockport Healthcare
Support Services, LLC.1 The complaint purported to allege
causes of action on behalf of the estate for negligence,
professional negligence, and dependent abuse. The sole
cause of action that Dean alleged on his own behalf was for
wrongful death.
On appeal, Dean contends: (1) he had standing to
pursue the estate’s causes of action as the personal
representative of Valerie’s estate and as her successor in
interest; (2) the trial court should have excluded the
declaration of Rockport’s general manager Rick

1 Because more than one participant shares the last
name Donnell, they will be referred to individually by their
first names for ease of reference. No disrespect is intended.

2
Dumdumaya, because the original declaration was not
signed and the corrected copy was untimely; (3) Four
Seasons did not submit sufficient evidence to meet its
burden of proof for summary adjudication; and (4) the trial
court abused its discretion by granting untimely motions to
compel further discovery responses and awarding sanctions
against Dean in his individual capacity based on discovery
that was directed to him solely in his representative
capacity.
We conclude Dean failed to raise a triable issue of fact
that he had standing to pursue the estate’s causes of action
as the personal representative of the estate, and he did not
comply with legal requirements to pursue the estate’ causes
of action as the decedent’s successor in interest. Therefore,
summary judgment was appropriate as to the estate’s causes
of action.
With respect to Dean’s individual cause of action for
wrongful death, we conclude the trial court did not abuse its
discretion by accepting the corrected Dumdumaya
declaration, which Rockport cured before Dean filed his
opposition to summary judgment, and therefore, summary
judgment was properly granted as to Rockport. Four
Seasons, however, did not present evidence that conclusively
negated an element of Dean’s cause of action for wrongful
death. As a result, the burden of proof never shifted to Dean
to demonstrate a triable issue of fact and summary
adjudication should have been denied as to the wrongful
death cause of action against Four Seasons.

3
 The motions to compel further discovery, which were
based on discovery requests directed solely to Dean in his
purported representative capacity, should have been denied
as untimely. We reverse the judgment, as well as the order
granting summary adjudication and the order compelling
further responses to discovery, with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Allegations of the Complaint

The initial complaint in this case was filed on June 6,
2017. On August 22, 2018, Dean filed the operative second
amended complaint against healthcare providers Four
Seasons, Rockport, Prime Healthcare Services – Sherman
Oaks, LLC, doing business as Sherman Oaks Hospital
(Sherman Oaks), and Lighthouse Healthcare Center, LLC.2
He alleged that he was suing in his individual capacity and
as the personal representative for Valerie’s estate. On
behalf of the estate, he brought causes of action for
negligence and professional negligence against all
defendants, as well as a cause of action for dependent abuse
against Rockport, Lighthouse, and Four Seasons. The sole

2 The second amended complaint erroneously named
Sherman Oaks Hospital and Prime Healthcare Services,
Inc., as two separate defendants, but the parties agree that
the defendant is one entity.

4
cause of action that Dean alleged on his own behalf was for
wrongful death as against all defendants.
Valerie was disabled and required 24-hour care. On
May 6, 2016, Valerie went to Hollywood Presbyterian
Hospital for treatment of severe constipation. She was
ultimately discharged to Four Seasons. On multiple
occasions at Four Seasons, she was left to sit in her own
bowel excrement in extreme heat, at times exceeding 90
degrees, for an extended period of time. Dean and Valerie
each repeatedly complained about this issue to employees of
Four Seasons. Dean called Four Seasons’ employees
multiple times on one date about Valerie’s complaints.
Valerie repeatedly reported to Four Seasons’ employees that
she was too hot and needed to use the bathroom. The
employees, including employees directly responsible for
Valerie, intentionally refused to change the temperature of
her room or assist her in going to the bathroom, even though
they were aware of her complaints and the potential
injurious consequences.
Four Seasons’ administrative, executive, and
managerial employees knowingly failed to implement
policies for basic check-ups on patients to make sure they
were adequately cared for in terms of human excrement
cleaning and temperature control. They also failed to
maintain policies for assessment, training, and discipline of
employees related to neglect, which resulted in the
intentional misconduct toward patients including Valerie.
They also knowingly understaffed the facility, with a

5
conscious disregard for the effects on patients, in order to
have lower overhead costs. As a result of this conduct,
Valerie developed a urinary tract infection (UTI).
On June 14, 2016, Valerie was transferred to Sherman
Oaks Hospital as a result of the increasingly severe UTI and
extreme dehydration. On June 21, 2016, Sherman Oaks
employees administered Seroquel to Valerie, which has
known highly negative side effects as related to Valerie’s
condition, including risk of heart attack or heart failure.
Valerie was discharged on June 23, 2016, and admitted to
the assisted living facility Lighthouse, which is owned and
operated by Rockport or one of its subsidiaries. Valerie
repeatedly advised Lighthouse and Rockport employees that
she felt extremely hot and needed water. Lighthouse and
Rockport employees intentionally disregarded her
complaints, although they were aware of the consequences of
dehydration and lack of temperature control to her health.
Dean spoke with Valerie on the telephone at 9:00 a.m.
on June 24, 2016. She complained that she was too hot and
was not being given water and other basic nutritional needs,
despite repeatedly requesting them from employees from the
time that she had been admitted. Dean reported the
conditions to Lighthouse and Rockport employees, but no
action was taken to assist Valerie. Valerie’s attending
physician was not notified of her complaints or conditions by
Lighthouse or Rockport employees until five minutes after
she died. At 12:59 p.m., as Dean was headed to the facility
with a fan to assist his wife with temperature control, she

6
died of cardiopulmonary arrest caused by the physical abuse
and neglect of the defendants. Had her complaints been
addressed, and her attending physician notified of her
complaints and the degradation of her condition from 8:00
p.m. the night before, her death would have been prevented.
Rockport’s and Lighthouse’s administrative, executive,
and managerial employees knowingly failed to implement
policies for basic check-ups on patients to make sure they
were adequately cared for in terms of human excrement
cleaning and temperature control. They also failed to
maintain policies for assessment, training, and discipline of
employees related to neglect, which resulted in the
intentional misconduct toward patients including Valerie.
They also knowingly understaffed the Lighthouse facility,
with a conscious disregard for the effects on patients, in
order to have a smaller staff and lower overhead costs.
Despite administrative, executive, and managerial
staff being made aware of the misconduct of employees of
Rockport, Lighthouse, or Four Seasons, after the events and
to the present date, no employee of Rockport, Lighthouse, or
Four Seasons has been disciplined, reprimanded,
terminated, or otherwise subjected to discipline or training.
The wrongful conduct was authorized by the policies of
Rockport, Lighthouse and/or Four Seasons, and ratified by
people serving in administrative, executive, and managerial
positions for those defendants when the facts of the conduct
were made known to them by Dean, internal review, and the
litigation. The defendants each acted in concert with and

7
was the agent, employee, or other representative of the other
defendants. The defendants each ratified or authorized the
acts of the other defendants, and they have engaged in a
conspiracy and common course of conduct.
In connection with the claim for professional
negligence, the complaint additionally alleged the
defendants had a duty to possess and diligently apply the
degree of learning and skill ordinarily possessed by their
peers. They also had a duty to disclose to Valerie the
available choices of therapy and the dangers involved in each
choice. They breached their duties, including failing to
possess and use that degree of learning and skill ordinarily
possessed by a reputable health care provider under similar
circumstances in conducting each treatment provided to
Valerie, including prescription of medication. They failed to
use reasonable diligence and best judgment in the exercise of
skill in conducting each treatment and in discharging
Valerie. They failed to apply appropriate learning in
conducting each treatment and discharging Valerie. They
failed to inform her of the available choices of therapy and
the dangers involved in each choice. And they violated a
number of guidelines and rules governing medical providers.
As a proximate result, Valerie and Dean were harmed. The
actions of the defendants constituted despicable conduct that
intentionally or recklessly ignored Valerie’s requests related
to her basic needs, entitling Dean to punitive damages as
permitted by statute.

8
 In connection with the negligence claim, the complaint
additionally alleged that to the extent any of the defendants
were not medical providers, they owed Valerie a duty of care
based on: ownership, possession, or control of the relevant
facilities; a special relationship between the defendants as a
business and Valerie as a patron; a duty to supervise,
control, and protect patients at the relevant facilities; a duty
to discharge patients in a way that did not cause harm to
patients; and a duty to supervise, manage, and control their
employees. The defendants’ conduct breached their duties,
resulting in harm to Valerie and Dean.
The wrongful death cause of action incorporated by
reference the allegations of professional negligence and
negligence. In addition, Dean alleged Valerie died as a
result of the defendants’ negligence or willful act in treating
and caring for Valerie and as a result of their willful conduct
in ignoring her basic needs, such as water and temperature
control. As a proximate result of their conduct, Valerie died
and Dean suffered damages.
In connection with the claim for dependent abuse, the
complaint alleged Valerie was a “dependent” within the
meaning of Welfare and Institutions Code section 15657.
The defendants intentionally, or with a conscious or
malicious disregard for the injurious and fatal consequences
to Valerie, continually and for a prolonged period of time
deprived her of basic necessities, such as food, water, and a
reasonable temperature, within the meaning of “abuse” in
section 15610.63 of the Welfare and Institutions Code.

9
Further, Lighthouse and Rockport intentionally, or with a
conscious or malicious disregard for the injurious and fatal
consequences to Valerie, ignored or refused to report to
Valerie’s attending physician the indications of Valerie’s
vital signs and temperature, the failure of which to treat led
to her injury and death. Through the conduct described, the
defendants engaged in “neglect,” within the meaning of
section 15610.57 of the Welfare and Institutions Code. As a
proximate result, Valerie suffered general and special
damages which the estate is entitled to recover. The estate
is entitled to reasonable attorney fees as well.

Motion for Summary Judgment and Supporting
Evidence

Sherman Oaks filed a motion for summary judgment,
which the trial court granted. On May 17, 2019, Rockport
and Four Seasons filed a motion for summary judgment, or
in the alternative summary adjudication. Rockport and
Four Seasons argued that Dean lacked standing to pursue
an action on behalf of Valerie’s estate. He had not been
appointed as personal representative of the estate, and he
had argued in prior demurrer proceedings that he was not
bringing the action as a successor in interest. In addition,
there were no facts to support that the Four Seasons staff
engaged in reckless, malicious, fraudulent or oppressive
conduct directed at Valerie to support a cause of action for
dependent elder abuse, or that an officer, director, or

10
managing agent of Four Seasons participated in, authorized,
or ratified any wrongful conduct directed at Valerie. With
respect to Dean’s wrongful death claim, the care and
treatment that Four Seasons’ nurses and staff provided
Valerie complied with the applicable standard of care, and
no negligent act or failure to act by nurses or staff of Four
Seasons caused or substantially contributed to Valerie’s
death. The complaint failed to present any triable issue of
material fact against Rockport, because Rockport did not
participate in the daily operations of Four Seasons or
Lighthouse, and did not authorize, ratify, or direct any
wrongful act by any employee of Four Seasons or
Lighthouse. And there was no admissible evidence that an
officer, director, or managing agent acted with malice
oppression or fraud toward Valerie.
In support of the motion, they submitted the
declaration of physician expert Karl Steinberg, M.D.
Steinberg has been licensed to practice medicine since 1989.
He is board certified in family medicine and in hospice and
palliative medicine. He held several membership and
leadership positions in organizations focused on geriatric
care. He is currently the chief medical officer for a 20-
facility skilled nursing facility management company. He
has served as the medical director of skilled nursing
facilities continuously since 1995.
He declared, “I am familiar with the standard of care
required in skilled nursing facilities, as set forth by industry
standards. I am also familiar with the California and

11
federal laws and regulations that govern the operation of
skilled nursing facilities. [¶] Based on my years of
education, training and experience, as well as my skill as a
practicing internal and geriatric medicine physician in the
Southern California community, I am familiar with, and
understand, the requirements of the standard of care which
must be met by nurses and staff providing care and
treatment to patients like decedent as it existed in 2016.”
(Sic.)
Steinberg declared that to formulate his opinion, he
reviewed Valerie’s records from the defendant health care
providers, Valerie’s doctors, her death certificate, and the
operative complaint. He noted that Valerie was admitted to
Four Seasons on May 22, 2016, with a primary diagnosis of
type 2 diabetes. Four Seasons staff documented in a
“Change of Condition Report” that she had an elevated blood
sugar level on June 7, 2016, and she was transferred to
Sherman Oaks Hospital. She returned from the emergency
room the same night with an order to take the antibiotic
Keflex for seven days to treat a UTI. On June 14, 2016, Four
Seasons staff reported that she continued to receive
antibiotics for the UTI and was voiding freely with no pain
or burning. Four Seasons staff prepared a new “Change of
Condition Report” for her later on June 14 showing she was
discharged to Sherman Oaks Hospital. She remained
hospitalized until she was discharged to Lighthouse on June
23, 2016, and died on June 24, 2016.

12
 Steinberg additionally declared, “Based on my review
of the aforementioned records, as well as my extensive
education, training and experience, it is my opinion that
Four Seasons did not engage in any reckless, oppressive,
fraudulent or malicious conduct toward decedent Valerie
Donnell during her residency at Four Seasons. Further, it is
my opinion that Four Seasons staff acted within the
standard of care when providing care and treatment to
decedent Valerie Donnell.”
“I am of the opinion that the care and treatment
rendered to decedent [by] the nursing staff of Four Seasons
was at all times appropriate and complied with the
applicable standard of care as it existed in 2016. The records
confirm that the nurses performed appropriate and timely
assessments of decedent during her residency at Four
Seasons, and were responsive to her change(s) in condition.
The records confirm that the nursing staff appropriately
documented decedent’s course and treatment during her
residency. The nursing staff carried out all physician orders
in a timely manner. I do not believe decedent required any
additional nursing care beyond what is reflected in the
chart.”
“It is my expert opinion to a reasonable degree of
medical probability that no alleged standard of care violation
by Four Seasons was a substantial factor in causing or
contributing to decedent’s demise. Specifically the care
provided by Four Seasons did not cause decedent’s demise,
and there is no causal connection between the care and

13
treatment provided by Four Seasons’ staff and decedent’s
death.”
Four Seasons and Rockport also submitted the
declaration of Manny Pastor, who is the administrator at
Four Seasons. He declared that the facility is licensed to
operate as a skilled nursing facility. He is familiar with the
state and federal regulations pertaining to facilities which
provide skilled nursing services, including regulations for
patient care, staffing and staff training. He was responsible
for the management of the facility and daily operations,
including resident grievances related to care, treatment, or
service. All nursing personnel report to Pastor. He was
never informed of any complaints made by Valerie, her
family members, or anyone else regarding decedent’s care or
treatment. He was never informed of any complaints by any
residents, family members or anyone else about
inadequately training or “unfit” staff working at the Four
Seasons during Valerie’s residency. If there had been such
complaints, Four Seasons policy required staff to notify
Pastor. He was never informed by anyone that a Four
Seasons employee deliberately declined to document the
care, treatment, or service provided to Valerie, and if they
did so, they were not authorized to act in that manner.
Pastor did not provide any care to Valerie, but as
administrator, he was generally familiar with the care and
treatment provided to her and he reviewed her chart of her
care and treatment at Four Seasons.

14
 Defendants submitted Dumdumaya’s declaration as
well. Dumdumaya is the general manager of Rockport,
which is an administrative support services company.
Rockport did not own, operate or manage Four Seasons or
Lighthouse. Rockport did not employ any of the individuals
who provided administrative, operational or clinical
oversight to Four Seasons or Lighthouse. Rockport did not
determine staff levels or budget for Four Seasons or
Lighthouse. Rockport was not responsible for any aspect of
the daily management or operation of Four Seasons or
Lighthouse at any time. Dumdumaya’s declaration
submitted in support of the motion for summary judgment
was unsigned at the time the motion was filed. Four days
later, on May 21, 2019, defendants filed a notice of errata
explaining that Dumdumaya’s declaration had omitted his
signature and attaching a signed copy of the declaration.
In support of the motion for summary judgment, the
defendants also submitted search results showing there was
no record in the Los Angeles Superior Court of an
appointment of Dean as personal representative for the
estate. They submitted Dean’s opposition to demurrer in
which he had asserted that he was not required to submit a
declaration under Code of Civil Procedure section 377.32 as
decedent’s successor in interest, because the personal
representative of the estate can pursue all claims that
existed before and after the decedent’s death without

15
submitting a declaration.3 Dean had stated in his opposition
to the demurrer: “Mr. Donnell, in his capacity as the
personal representative of Ms. Donnell’s estate, is not a
successor in interest as defined in that article, he is (as the
title states) the personal representative of the estate (i.e.
executor).” In addition, Dean asserted in his opposition to
the demurrer that if he were proceeding as a successor in
interest, the failure to file an affidavit was subject to cure,
not grounds for dismissal.

Opposition to Motion and Supporting Evidence

On July 18, 2019, Dean filed an opposition to the
motion for summary judgment. He argued that he had
standing as an heir and as the personal representative of
Valerie’s estate, which was not required to have been
probated. He further argued that under Probate Code
section 13500, the appointment of a personal representative
for an estate that was not subject to probate did not require
any court action. In addition, if he lacked legal capacity to
file a claim on behalf of the estate, it would be grounds for
abeyance, not entry of an adverse judgment.
Dean provided his declaration stating that he is the
sole heir and beneficiary of Valerie’s estate. He was bringing
the estate’s causes of action as Valerie’s “successor in
interest” and as a personal representative of her estate,

3 All further statutory references are to the Code of
Civil Procedure unless otherwise stated.

16
which was not a probate estate requiring court action to
appoint a personal representative.
Dean also filed objections to the evidence submitted by
Four Seasons and Rockport. He objected to the
Dumdumaya’s entire declaration on the grounds of
“Relevance; competency; conclusory; legal conclusion;
hearsay; foundation.”

Reply and Trial Court Ruling

Four Seasons and Rockport filed a reply. They argued
that Dean could not show he was appointed as personal
representative, and he had never attempted to obtain
standing as the decedent’s successor in interest pursuant to
section 377.32. They also filed objections to Dean’s evidence.
A hearing was held on the motion for summary
adjudication on August 1, 2019. No reporter’s transcript of
the hearing has been included in the record on appeal. The
minute order reflects that the trial court ruled on the
parties’ evidentiary objections, including the following
pertinent rulings. The trial court overruled Dean’s objection
to Dumdumaya’s declaration, finding the declaration was
relevant, did not constitute an improper legal conclusion,
and did not constitute inadmissible hearsay. The court
sustained objections to Steinberg’s declaration, on the
ground that the medical records underlying Steinberg’s
expert opinion had not been authenticated.

17
 The trial court sustained an objection to Dean’s
declaration that he was the sole beneficiary of Valerie’s
estate and bringing her survivor causes of action as her
“successor in interest” and as a personal representative of
her estate, which is not a probated estate that required a
court to appoint a personal representative. The statements
consisted of improper legal conclusions and lacked
foundation. The court sustained an objection to his
statement that Valerie was transferred to Sherman Oaks
because she contracted a UTI at Four Seasons as a result of
being left to sit in urine and bowel movements for extended
periods of time. The court noted the statement was
improper expert opinion, lacked foundation, and did not cite
evidence to support his claims on causation. The court
sustained the defendants’ objection to Dean’s statement that
Valerie was rarely seen by anyone at Four Seasons for any
reason, let along cleaning and hygiene, and there was
insufficient staff to handle the patient volume at the facility.
The court explained that the statement lacked foundation
and Dean did not attest to how he knew this fact.
The court granted summary adjudication on the issue
of standing, which resolved the causes of action brought by
Dean purportedly on behalf of the estate. The court also
granted the motion with respect to the wrongful death cause
of action against Rockport, finding no triable issue of fact
had been presented as to Rockport’s involvement in the
services rendered, which resolved all of the causes of action
against Rockport. The trial court’s tentative ruling was to

18
deny summary adjudication of the wrongful death cause of
action due to the failure to authenticate the underlying
medical charts, but ultimately, the court continued the
hearing on the motion as to the cause of action for wrongful
death against Four Seasons. The court allowed Four
Seasons to submit further documentation regarding the
cause of action on or before August 9, 2019, followed by an
opportunity to submit responsive evidence and a reply. The
court ordered a dismissal of Lighthouse.

Continued Motion for Summary Judgment and
Supporting Evidence

Four Seasons and Rockport filed briefing in the
continued motion for summary judgment or in the
alternative, summary adjudication on August 9, 2019, as to
the cause of action for wrongful death. They argued that
Valerie’s treatment and care by the staff of Four Seasons
complied with the applicable standard of care, and no act or
failure to act by Four Seasons caused or substantially
contributed to her death.
Four Seasons and Rockport again filed Steinberg’s
same declaration. They also attached a declaration from the
custodian of records at Four Seasons that the records were a
true copy of the Four Seasons chart pertaining to Valerie
prepared in the ordinary course of business.

19
Opposition to Continued Motion and Supporting
Evidence

Dean opposed the continued motion for summary
judgment on the grounds that Four Seasons and Rockport
had failed to meet their burden, and there were triable
issues of fact as to the pending cause of action against each.
Dean additionally raised arguments about negligence per se
and elder abuse.
Dean submitted a declaration in opposition to the
motion for summary judgment. He also made the same
objections to the defendants’ evidence that he had previously
raised prior to the continuation of the motion for summary
judgment.

Reply and Trial Court Ruling

In reply, Four Seasons and Rockport argued that the
opposition was untimely, Steinberg’s declaration was proper,
and Dean had failed to submit an expert declaration to raise
a triable issue of fact. They submitted objections to Dean’s
declaration. They also filed a reply to Dean’s evidentiary
objections.
A hearing was held on September 27, 2019. No
reporter’s transcript has been included in the record on
appeal. The trial court found Steinberg’s declaration was
supported by authenticated records and the defendants had
met their burden. Dean argued Steinberg’s declaration was

20
irrelevant, because Dean was relying on a theory of
negligence per se. The court found Dean had not pled a
negligence per se theory or any specific facts that should
have alerted the defendants to address negligence per se. In
addition, the theory required a medical expert declaration to
refute Steinberg’s declaration that no negligent act caused
Valerie’s death. Therefore, Dean failed to show a triable
issue of fact and the motion was granted.
On October 4, 2019, the trial court entered an order
finding there was no triable issue of fact. Four Seasons and
Rockport were entitled to summary adjudication on the issue
of standing, because Dean had not been appointed by the
court as personal representative of the decedent’s estate, and
therefore lacked standing to pursue causes of action on
behalf of the estate. Also, Rockport did not participate in the
daily operations of Four Seasons or Lighthouse, and did not
authorize, ratify, or direct any wrongful act by any employee
of Four Seasons or Lighthouse.
On October 8, 2019, the trial court entered judgment in
favor of Four Seasons and Rockport. Dean filed a notice of
appeal on December 4, 2019.

DISCUSSION

Standard of Review

“‘[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of

21
material fact and that [it] is entitled to judgment as a matter
of law.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850, fn. omitted (Aguilar); accord, Code Civ. Proc.,
§ 437c, subd. (c).) A defendant moving for summary
judgment must make a prima facie showing either that the
plaintiff cannot establish one or more elements of a cause of
action or that there is a complete defense to the action.
(Aguilar, at p. 850; Code Civ. Proc, § 437c, subds. (o), (p)(2).)
A defendant moving for summary judgment may satisfy this
initial burden of production by presenting evidence that
conclusively negates an element of the plaintiff’s cause of
action or by relying on the plaintiff’s factually devoid
discovery responses to show that the plaintiff does not
possess, and cannot reasonably obtain, evidence to establish
that element. (Aguilar, at pp. 854–855.) The opposing party
has no obligation to show a triable issue of material fact
exists unless and until the moving party has met its burden.
(Villa v. McFerren (1995) 35 Cal.App.4th 733, 743–744.) If
the defendant makes such a showing, the burden shifts to
the plaintiff to present evidence showing there is a triable
issue of material fact. (Aguilar, at p. 850.)” (Schmidt v.
Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119 (Schmidt).)
We conduct an independent review of a grant of
summary judgment to determine whether triable issues of
fact exist. (Duarte v. Pacific Specialty Ins. Co. (2017) 13
Cal.App.5th 45, 52 (Duarte).) “In conducting our review, we
must identify the issues to be considered on the motion for
summary judgment, which are defined by the pleadings.

22
(Conroy v. Regents of University of California (2009) 45
Cal.4th 1244, 1250.) Significantly, as to each claim as
framed by the complaint, ‘“‘the motion must respond by
establishing a complete defense or otherwise showing there
is no factual basis for relief on any theory reasonably
contemplated by the opponent’s pleading.’”’ [Citation.]” (Doe
v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661,
italics and fn. omitted (Good Samaritan).)
“The evidence must be viewed in the light most
favorable to the nonmoving party. (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 768.) In deciding whether
a material factual issue exists for trial, we ‘consider all of the
evidence set forth in the papers, except the evidence to which
objections have been made and sustained by the court, and
all inferences reasonably deducible from the evidence.’
(Code Civ. Proc., § 437c, subd. (c).) ‘Pursuant to the weight
of authority, appellate courts review a trial court’s rulings on
evidentiary objections in summary judgment proceedings for
abuse of discretion. [Citations.]’ (Eisenberg, Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2016)
¶ 8.168, pp. 8-146 to 8-147, italics omitted.) The party
challenging a trial court’s evidentiary ruling has the ‘burden
to establish such an abuse, which we will find only if the
trial court’s order exceeds the bounds of reason. [Citation.]”
(Duarte, supra, 13 Cal.App.5th at p. 52, fn. omitted.)
“If an expert provides an opinion in support of a motion
for summary judgment, he or she must provide the facts
upon which the expert’s conclusions are based. ‘“‘[A]n

23
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.
[Citations.]’ [Citation.]”’ (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 530, italics added.)” (Good Samaritan,
supra, 23 Cal.App.5th at p. 662.)
“Because summary judgment is a drastic measure that
deprives the losing party of a trial on the merits, summary
judgment may not be granted unless it is clear there are no
triable issues of material fact. (Johnson v. Superior Court
(2006) 143 Cal.App.4th 297, 304 (Johnson).)” (McAlpine v.
Norman (2020) 51 Cal.App.5th 933, 938 (McAlpine).)

Standing to Bring Claims of the Estate

Four Seasons and Rockport contend that Dean lacks
standing to bring a claim on behalf of Valerie’s estate,
because he has not been appointed by the court as the
personal representative of the estate, denied that he was
bringing the claims as Valerie’s successor in interest, and
never filed an affidavit as required under Code of Civil
Procedure section 377.32 to pursue the claim as a successor
in interest. Dean contends that he was not required to be
appointed as the personal representative of the estate
because he became the personal representative by operation
of law as Valerie’s surviving spouse, and in addition, he has
standing as Valerie’s successor in interest as the beneficiary

24
of her estate, even though he did not file a certificate under
section 377.32. We conclude the trial court properly granted
summary adjudication on the issue of standing to pursue the
decedent’s causes of action.

A. Statutory Scheme Governing a Cause of
Action Surviving Death

A cause of action that survives a person’s death passes
to the decedent’s successor in interest, “and an action may be
commenced by the decedent’s personal representative or, if
none, by the decedent’s successor in interest.” (§ 377.30.)
The Law Revision Commission comment to section 377.30
explains in relevant part: “Under this section, an action or
proceeding may be commenced by the decedent’s successor in
interest only if there is no personal representative. The
distributee of the cause of action in probate is the successor
in interest or, if there is no distribution, the heir, devisee,
trustee, or other successor has the right to proceed under
this article. See Section 377.11 (‘decedent’s successor in
interest’ defined). See also Prob. Code § 58 (‘personal
representative’ defined). The addition of the reference to the
successor in interest makes the rules applicable to
commencement of an action consistent with the rules
applicable to continuation of a pending action.” (Cal. Law
Revision Com. com., 22 West’s Ann. Code Civ. Proc. (1992
ed.) foll. § 377.30, p. 931.)

25
 A “personal representative,” as defined by Probate
Code section 58, subdivision (a), is an “executor,
administrator, administrator with the will annexed, special
administrator, successor personal representative, public
administrator acting pursuant to Section 7660, or a person
who performs substantially the same function under the law
of another jurisdiction governing the person’s status.” (Prob.
Code, § 58.)
A person has no power to administer an estate until
appointed as the personal representative. (Prob. Code,
§ 8400, subd. (a).)4 The appointment becomes effective when
the person is issued letters by the court. (Ibid.)
Appointment by the court is required even if the person is
named as executor in the decedent’s will, although a person
named as executor can take certain actions to pay funeral
costs and preserve the estate before the appointment
becomes effective. (Prob. Code, § 8400, subd. (b).)

4 Probate Code section 8400 states: “(a) A person has
no power to administer the estate until the person is
appointed personal representative and the appointment
becomes effective. Appointment of a personal representative
becomes effective when the person appointed is issued
letters. [¶] (b) Subdivision (a) applies whether or not the
person is named executor in the decedent’s will, except that
a person named executor in the decedent’s will may, before
the appointment is made or becomes effective, pay funeral
expenses and take necessary measures for the maintenance
and preservation of the estate.” (Prob. Code, § 8400.)

26
 In cases where there is no personal representative
appointed, such as when administration of the estate is not
required, California law allows the decedent’s successor in
interest to pursue the surviving cause of action. The
“decedent’s successor in interest” for the purposes of the
survival statutes is “the beneficiary of the decedent’s estate
or other successor in interest who succeeds to a cause of
action or to a particular item of the property that is the
subject of a cause of action.” (§ 377.11.)
Under section 377.32, a person seeking to initiate or
continue an action as the decedent’s successor in interest
must execute and file an affidavit or a declaration under
penalty of perjury providing all of the following: the
decedent’s name; the date and place of death; a statement
that no proceeding is pending for administration of the
decedent’s estate; if the estate was administered, a copy of
the final order showing distribution of the cause of action to
the successor in interest; a statement that the affiant is the
decedent’s successor in interest to the action as defined in
section 377.11, or authorized to act on behalf of the
decedent’s successor in interest; and a statement that no
other person has a superior right to commence the action or
be substituted for the decedent in a pending action.
(§ 377.32, subd. (a).)5

5 Section 377.32, subdivision (a), provides that a person
seeking to commence or continue an action as the decedent’s
successor in interest to execute and file an affidavit or a
declaration under penalty of perjury stating all of the

27
 We note that “The court in which an action is
commenced or continued under this article may make any
order concerning parties that is appropriate to ensure proper
administration of justice in the case, including appointment
of the decedent’s successor in interest as a special
administrator or guardian ad litem.” (§ 377.33) The Law
Revision Commission comment to section 377.33 explains,
“The court in which the action or proceeding is pending has
authority to resolve questions concerning the proper parties
to the litigation and to make conclusive and binding orders,

following: “(1) The decedent’s name. [¶] (2) The date and
place of the decedent’s death. [¶] (3) ‘No proceeding is now
pending in California for administration of the decedent’s
estate.’ [¶] (4) If the decedent’s estate was administered, a
copy of the final order showing the distribution of the
decedent’s cause of action to the successor in interest. [¶]
(5) Either of the following, as appropriate, with facts in
support thereof: [¶] (A) ‘The affiant or declarant is the
decedent’s successor in interest (as defined in Section 377.11
of the California Code of Civil Procedure) and succeeds to the
decedent’s interest in the action or proceeding.’ [¶] (B) ‘The
affiant or declarant is authorized to act on behalf of the
decedent’s successor in interest (as defined in Section 377.11
of the California Code of Civil Procedure) with respect to the
decedent’s interest in the action or proceeding.’ [¶] (6) ‘No
other person has a superior right to commence the action or
proceeding or to be substituted for the decedent in the
pending action or proceeding.’ [¶] (7) ‘The affiant or
declarant affirms or declares under penalty of perjury under
the laws of the State of California that the foregoing is true
and correct.’” (§ 377.32, subd. (a).)

28
including determinations of the right of a successor in
interest to commence or continue an action or proceeding.
The references to appointment of the successor in interest as
a special administrator or guardian ad litem are intended to
recognize that there may be a need to impose fiduciary
duties on the successor to protect the interests of other
potential beneficiaries. See Code Civ. Proc. §§ 372–373.5
(guardian ad litem); Prob. Code §§ 8540–8547 (special
administrator).” (Cal. Law. Revision Com. com., 22 West’s
Ann. Code of Civ. Proc. (1992 ed.) foll. Code of Civ. Proc.,
§ 377.33, p. 933.)

B. No Standing as Personal Representative

Dean’s complaint alleged that he was bringing
Valerie’s surviving causes of action as the personal
representative of his deceased wife’s estate. In support of
the motion for summary judgment, Four Seasons and
Rockport submitted evidence that there was no record of
Dean having been appointed by the court as the personal
representative of Valerie’s estate. This evidence was
sufficient to shift the burden of proof to Dean to show a
triable issue of fact on the issue of whether he was the
estate’s personal representative.
In response, Dean argued that he became the personal
representative of the estate as the surviving spouse by
operation of law under Probate Code section 13500. This is
incorrect. Probate Code section 13500 provides, “Except as

29
provided in this chapter, when a spouse dies intestate
leaving property that passes to the surviving spouse under
Section 6401, or dies testate and by his or her will devises all
or a part of his or her property to the surviving spouse, the
property passes to the survivor subject to the provisions of
Chapter 2 (commencing with Section 13540) and Chapter 3
(commencing with Section 13550), and no administration is
necessary.” (Prob. Code, § 13500.) Probate Code section
13500 provides for the succession of certain property to a
surviving spouse without administration. It does not
additionally appoint the surviving spouse to act in the
capacity of personal representative of the estate. Nor is a
surviving spouse who succeeds to property without
administration encompassed in the definition of a personal
representative under Probate Code section 58. Dean has not
provided any authority to support that a surviving spouse
becomes the personal representative of the deceased spouse’s
estate by operation of law without appointment. The trial
court properly found Dean failed to raise a triable issue of
fact as to whether he was the personal representative of the
estate for purposes of standing, and therefore, summary
judgment was properly entered as to the causes of action
brought on behalf of the estate.

C. Other Standing Arguments

Dean contends that even if he did not have standing as
the personal representative of the estate, he had standing as

30
Valerie’s successor in interest, and his failure to file an
affidavit under section 377.32 to commence an action as the
decedent’s successor in interest was subject solely to a plea
in abatement. We disagree.
The complaint alleged that Dean was the personal
representative of the estate; it did not allege that he was
bringing the action as the decedent’s successor in interest.
“‘The pleadings delimit the issues to be considered on a
motion for summary judgment. [Citation.]’ (Turner v. State
of California (1991) 232 Cal.App.3d 883, 891 (Turner).)
Thus, a ‘defendant moving for summary judgment need
address only the issues raised by the complaint; the plaintiff
cannot bring up new, unpleaded issues in his or her opposing
papers.’ (Government Employees Ins. Co. v. Superior Court
(2000) 79 Cal.App.4th 95, 98–99, fn. 4.) ‘To create a triable
issue of material fact, the opposition evidence must be
directed to issues raised by the pleadings. [Citation.] If the
opposing party’s evidence would show some factual
assertion, legal theory, defense or claim not yet pleaded, that
party should seek leave to amend the pleadings before the
hearing on the summary judgment motion. [Citations.]’
(Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264–
1265.) ‘[T]he pleadings “delimit the scope of the issues” to be
determined and “[t]he complaint measures the materiality of
the facts tendered in a defendant’s challenge to the plaintiff’s
cause of action.” [Citation.] [Plaintiff’s] separate statement
of material facts is not a substitute for an amendment of the
complaint. [Citation.]’ (Lackner v. North (2006) 135

31
Cal.App.4th 1188, 1201–1202, fn. 5 (Lackner).)” (Laabs v.
City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)
At no time did Dean seek leave to amend to allege that
he was the decedent’s successor in interest, even after the
issue of standing was raised on demurrer. In fact, in
opposition to demurrer, Dean expressly denied that he was
pursuing the action as the decedent’s successor in interest or
that an affidavit under section 377.32 was required of him.
Four Seasons and Rockport needed only to address the
allegations of the complaint in their motion for summary
judgment. Dean could not raise an argument that he had
standing as the decedent’s successor in interest for the first
time in opposition to the motion, without having sought
leave to amend the complaint.
Even were we to conclude the allegations of the
complaint were sufficient to raise the issue of standing as a
successor in interest and Dean’s evidence established a
triable issue of fact that Valerie’s causes of action passed to
him, he did not file the affidavit required under section
377.32 to commence or continue an action as the successor in
interest. The trial court properly found there was no triable
issue of fact as to standing. Dean relies on dicta in Parsons
v. Tickner (1995) 31 Cal.App.4th 1513, 1523–1524 (Parsons),
to argue that failing to file an affidavit under section 377.32
results in suspension of the action, not dismissal, but
Parsons is distinguishable. The plaintiff in Parsons filed her
complaint before statutory provisions were enacted to
authorize an action by a decedent’s successor in interest.

32
When defendants filed a demurrer on the ground that she
lacked capacity because she was not the personal
administrator of the estate, she advised the trial court that
she would comply with the newly-enacted provision by filing
an affidavit as decedent’s successor in interest. The Parsons
court held that the survival provisions applied retroactively
to permit the decedent’s successor in interest to file an action
where there was no personal representative, and filing an
affidavit under section 377.32 was not a condition precedent
to filing an action as the decedent’s successor in interest. In
dicta, the court added that “failure to file the affidavit could
possibly subject the action to a plea in abatement.” (Id. at
p. 1524.) The court’s holding does not apply to a case where
the plaintiff alleged that he was bringing the action as the
personal representative of the estate, not as the successor in
interest and without filing an affidavit to pursue the action
as decedent’s successor in interest, in the context of a
dispositive summary judgment motion.
In this case, Dean did not establish standing to pursue
the action as decedent’s successor in interest in the absence
of the required affidavit. He did not allege, and even
expressly denied, that he was bringing the action as the
decedent’s successor in interest. He did not request any
remedial action at any time: he did not request leave to
amend the complaint to allege standing as the decedent’s
successor in interest, did not submit a proposed affidavit in
opposition to summary judgment, and did not request a
continuance to file the required affidavit. Unlike in Parsons,

33
there are no facts in this record which indicate Dean made a
good faith effort to comply with the relevant statutory
requirements. (Compare Klopstock v. Superior Court (1941)
17 Cal.2d 13, 19–21 [party was allowed to amend the
complaint to substitute newly appointed administratrix as
real party in interest for plaintiff who lacked standing] with
Coats v K-Mart Corp. (1989) 215 Cal.App.3d 961, 964–967
[plaintiff who alleged she was the decedent’s administratrix,
but did not actually seek appointment as administratrix
until several years later and did not request leave to amend
or take any other remedial action after appointment, did not
have standing].) In the context of the summary judgment
proceedings, the trial court properly found Dean had not met
his burden to demonstrate a triable issue of fact regarding
his standing to assert claims on behalf of Valerie’s estate.
The sole remaining cause of action was Dean’s individual
wrongful death claim.

Dumdumaya Declaration

In support of the motion for summary judgment,
Rockport submitted Dumdumaya’s declaration stating that
Rockport was not responsible for operations at Four Seasons
or Lighthouse. Dean contends the trial court should have
excluded Dumdumaya’s declaration on the grounds of
hearsay and foundation, because the original declaration
was not signed and the notice of errata filed four days later
on May 21, 2019, providing Dumdumaya’s signature was

34
untimely with respect to the August 1, 2019 hearing on the
motion for summary judgment.
Dean did not object in the trial court that the corrected
declaration was untimely, and therefore, he has waived the
objection. (§ 437c, subd. (d); Snoke v. Bolen (1991) 235
Cal.App.3d 1427, 1430, fn. 2.) Even were we to find his
objection has been preserved, the trial court did not abuse its
discretion by allowing Rockport to cure the signature defect
in the declaration.
A declaration is a writing that is signed, dated, and
certified as true under penalty of perjury. (§ 2015.5;
Kulshrestha v. First Union Commercial Corp. (2004) 33
Cal.4th 601, 606 (Kulshrestha).) Section 2015.5 requires an
unsworn declaration to be subscribed by the declarant.
(§ 2015.5; In re Marriage of Reese & Guy (1999) 73
Cal.App.4th 1214, 1222–1223.) All of the statutory
conditions must appear on the face of the declaration for
compliance with section 2015.5 to be considered substantial
and sufficient. (Kulshrestha, supra, 33 Cal.4th at p. 612.) A
declaration that fails to comply with the requirements of
section 2015.5 cannot be used as an evidentiary document to
support or oppose a summary judgment motion. (Id. at
pp. 606, 619.)
However, “California appellate courts have held that a
pleading may be amended for the purpose of curing a
signature defect. In United Farm Workers of America v.
Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915,
the California Supreme Court ruled that failure to verify a

35
pleading, where the verification is required by statute, ‘is a
mere defect curable by amendment.’ Moreover,
‘[a]mendments may cure such a defect even when submitted
after the statute of limitations has run on the time to file the
original complaint, since verification of a complaint is not a
jurisdictional requirement.’ (Ibid.; see also Perlman v.
Municipal Court (1979) 99 Cal.App.3d 568, 574 [failure to
verify a writ petition is a procedural defect that may be
cured by amendment].)” (Board of Trustees v. Superior
Court (2007) 149 Cal.App.4th 1154, 1163–1164.)
We review the trial court’s evidentiary rulings in
connection with summary judgment for abuse of discretion.
(Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 181.) The trial court did not abuse its
discretion by allowing Rockport to correct Dumdumaya’s
declaration by submitting a signed copy. The signed copy
was filed within four days of the motion, before Dean filed an
opposition to the motion and without causing any prejudice
to Dean. (Compare Kulshrestha, supra, 33 Cal.4th at
pp. 607–608 [plaintiff did not try to submit corrected
declarations until after the trial court had heard and ruled
on the motion] with Ambriz v. Kelegian (2007) 146
Cal.App.4th 1519, 1527–1528 [finding trial court should
have permitted party to cure defect in attorney’s declaration
when attorney offered to do so at oral argument].) No abuse
of discretion has been shown. Dumdumaya’s declaration
was sufficient to shift the burden of proof to Dean to show
triable issues of fact as to Rockport’s liability for Valerie’s

36
injuries, which Dean did not submit. The trial court
properly granted summary judgment of Dean’s wrongful
death claim against Rockport based on the failure to show
Rockport was liable for the conduct at issue. The lack of
evidence of Rockport’s liability serves as an additional basis
for granting summary judgment of the estate’s claims
against Rockport as well.

Wrongful Death

Dean contends summary adjudication of the wrongful
death claim that he alleged on his own behalf based on
ordinary negligence and professional negligence should have
been denied, because Four Seasons failed to submit evidence
that conclusively negated an element of his claim. We agree
that the evidence Four Seasons submitted in support of
summary judgment was too conclusory to address the
allegations of the complaint, and therefore, summary
adjudication must be denied.
“The elements of a cause of action for wrongful death
are a tort, such as negligence, and resulting death. (Boeken
v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 806.)”
(Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685
(Lopez).) “Generally ‘negligence’ is the failure ‘“to exercise
the care a person of ordinary prudence would exercise under
the circumstances.”’ [Citation.]” (Delaney v. Baker (1999) 20
Cal.4th 23, 31 (Delaney).) “The elements of a negligence
cause of action are duty to use due care and breach of duty,

37
which proximately causes injury. (Holmes v. Summer (2010)
188 Cal.App.4th 1510, 1528.)” (Lopez, supra, 196
Cal.App.4th at p. 685.)
“‘Professional negligence’ is one type of negligence, to
which general negligence principles apply. ‘With respect to
professionals, their specialized education and training do not
serve to impose an increased duty of care but rather are
considered additional “circumstances” relevant to an overall
assessment of what constitutes “ordinary prudence” in a
particular situation. Thus, the standard for professionals is
articulated in terms of exercising “the knowledge, skill and
care ordinarily possessed and employed by members of the
profession in good standing . . . .”’ [Citation.]” (Delaney,
supra, 20 Cal.4th at p. 31.)
“The elements of a cause of action for medical
malpractice are: (1) a duty to use such skill, prudence, and
diligence as other members of the profession commonly
possess and exercise; (2) a breach of the duty; (3) a
proximate causal connection between the negligent conduct
and the injury; and (4) resulting loss or damage. (Hanson v.
Grode (1999) 76 Cal.App.4th 601, 606.)” (Johnson, supra,
143 Cal.App.4th at p. 305.)
“Because the standard of care in a medical malpractice
case is a matter ‘peculiarly within the knowledge of experts’
(Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony
is required to ‘prove or disprove that the defendant
performed in accordance with the standard of care’ unless
the negligence is obvious to a layperson. (Kelley v. Trunk

38
(1998) 66 Cal.App.4th 519, 523.) However, the expert
testimony must be based on such matters as may be
reasonably relied upon by an expert in forming an opinion on
the subject. (Ibid.)” (Johnson, supra, 143 Cal.App.4th at
p. 305.)
“The law is clear that [the] moving party’s burden . . .
cannot be satisfied by an expert declaration consisting of
ultimate facts and conclusions that are unsupported by
factual detail and reasoned explanation, even if it is
admitted and unopposed.” (Good Samaritan, supra, 23
Cal.App.5th at p. 657.) “‘“‘[B]ecause an expert opinion is
worth no more than the reasons and facts on which it is
based,’”’” an expert opinion rendered without a reasoned
explanation of why the underlying facts lead to the ultimate
conclusion has no evidentiary value. (Id. at p. 662.)
Although the complaint is not a model of clarity, the
gravamen of Dean’s wrongful death claim based on ordinary
negligence and professional negligence is that Four Seasons
was understaffed and did not attend to Valerie’s hygiene
needs, in violation of unspecified statutes and regulations
governing skilled nursing care facilities. The key allegations
were that Valerie reported to staff that she needed to use the
bathroom and was too hot. Employees intentionally refused
to assist her with using the bathroom or to change the
temperature in the room. She was left sitting in excrement
in extreme heat for extended periods of time. Dean and
Valerie both repeatedly complained about Valerie’s hygiene
care needs. Four Seasons failed to implement policies to

39
check on patients to care for hygiene and temperature
control, and they understaffed the facility to reduce overhead
costs. Dean further alleged that as a result of Four Seasons’
breach of its duty of care related to use of the bathroom,
Valerie contracted a UTI, which was a substantial factor in
the chain of events leading to her ultimate death.
In the motion for summary judgment, Four Seasons
sought to show through Steinberg’s declaration that
Valerie’s care and treatment were within the standard of
care for skilled nursing facilities. However, Steinberg’s
declaration amounted to little more than a bare statement
that Valerie’s treatment was within the standard of care. He
did not elaborate or explain how her treatment was within
the standard of care with respect to hygiene and bathroom
assistance. Steinberg did not summarize any care from
Valerie’s charts related to assisting her with using the
bathroom, changing soiled linens, or responding to hygiene
and temperature control needs. He simply makes conclusory
statements that the care and treatment rendered by the
nursing staff of Four Seasons was appropriate, complied
with the applicable standard of care, records reflect the
nurses performed appropriate and timely assessments,
appropriately documented her course and treatment during
her residency, and were responsive to the changes in her
medical condition. He does not state the standard of care for
skilled nursing facility staff with any specificity with respect
to a resident’s hygiene needs or how Four Seasons met the
standard in the area of hygiene. There was no information

40
about the staffing level necessary to meet the standard of
care or the staffing level at Four Seasons in particular.
Steinberg’s declaration, which was the sole evidence on the
issue of breach of a duty of care, was not sufficient to address
the allegations of the complaint and show that Dean could
not establish an element of his claim.
“In Good Samaritan, the Court of Appeal held that
summary judgment should not have been granted on a
minor’s claim that a hospital was negligent in housing him
with a roommate who sodomized him. (Good Samaritan,
supra, 23 Cal.App.5th at pp. 656–657.) In support of a
motion for summary judgment, the hospital lodged an
unrebutted expert declaration from a nurse stating, based on
a review of the hospital’s records, that the hospital’s conduct
met the standard of care at all times during the care and
treatment of the minor. (Id. at pp. 659–660, 665.) In
reversing the judgment, the appellate court concluded that
the expert’s declaration was legally insufficient to shift the
burden to the plaintiff to show a triable issue of material fact
because it was conclusory and lacked any meaningful
explanation of the applicable standard of care and the
conduct required to meet it. (Id. at pp. 656, 664–665.) In
reaching this conclusion, the Court of Appeal cited Kelley v.
Trunk (1998) 66 Cal.App.4th 519 (Kelley) and Johnson,
supra, 143 Cal.App.4th 297. (Good Samaritan, at pp. 663–
664.)” (McAlpine, supra, 51 Cal.App.5th at p. 939.)
“In Kelley, a patient sued physicians, alleging that he
suffered neurological damage and other injuries as a result

41
of negligent medical care after being treated for a laceration
on his arm. (Kelley, supra, 66 Cal.App.4th at p. 521.) The
defendants moved for summary judgment, submitting the
expert declaration of another doctor who, after reviewing the
medical records and relating the patient’s treatment, stated
that ‘“[a]t all times [the treating physician] acted
appropriately and within the standard of care under the
circumstances presented.”’ (Id. at p. 522.) The expert ‘did
not further elaborate upon or explain the basis for his
opinion.’ (Ibid.) The trial court granted summary judgment,
but the Court of Appeal reversed. (Id. at pp. 523, 525.) Even
though the expert’s declaration was admitted into evidence
due to the plaintiff’s failure to object (id. at p. 524), the
appellate court held that the standard for summary
judgment is ‘not satisfied by laconic expert declarations
which provide only an ultimate opinion, unsupported by
reasoned explanation.’ (Id. at p. 525.)” (McAlpine, supra, 51
Cal.App.5th at pp. 939–940.)
“[The appellate court] followed the reasoning of Kelley
in Johnson, supra, 143 Cal.App.4th 297. In Johnson, a
patient sued his physicians for malpractice, alleging that he
was injured by excessive use of radiation during his
treatment for prostate cancer. (Id. at pp. 299–300, 306.)
The physicians moved for summary judgment, relying on a
conclusory expert declaration stating that what was done
was within the standard of care. (Id. at p. 306.) The trial
court granted summary judgment because it found the
plaintiff’s competing expert declaration inadequate. (Id. at

42
p. 299.) [¶] We held that the bare conclusion of the
defendants’ expert, unsupported by reasons or explanations,
was insufficient to show the defendants acted within the
standard of care. (Johnson, supra, 143 Cal.App.4th at
pp. 305, 307; see also Pacific Gas & Electric Co. v.
Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [value of
opinion evidence rests not in the conclusion reached but in
the factors considered and the reasoning employed].) Since a
patient could be harmed by receiving too much radiation, an
expert opinion that does not set forth the standard for
determining a safe amount of radiation is legally insufficient
to show the standard of care was met. (Johnson, supra, at
p. 308.) And because the defendants did not meet their
initial burden of production, they were not entitled to
summary judgment, regardless of the adequacy of the
plaintiff’s opposition. (Id. at pp. 305, 308.) We reach the
same conclusion here.” (McAlpine, supra, 51 Cal.App.5th at
p. 940.)
Four Seasons’ evidence was insufficient to show that
Dean could not establish an element of his individual claim
for wrongful death. Since Four Seasons did not meet its
initial burden of proof, Dean was not required to
demonstrate the existence of a triable issue of fact and
judgment must be reversed on Dean’s individual wrongful
death claim.

43
Discovery Ruling

Dean contends the trial court erred by granting
motions to compel further discovery requests against Dean
in his individual and representative capacities, because the
discovery requests were made solely to Dean in his
representative capacity and the motions to compel further
responses were untimely. On appeal, Four Seasons and
Rockport have not addressed the proper parties to the
discovery proceedings or the timeliness of the motions to
compel further responses. On the record presented, we
conclude Dean is correct.

A. Additional Facts

In January 2019, Four Seasons and Rockport each
served a request for production of documents directed to
Dean in his representative capacity for the estate, not his
individual capacity. They each served a request for
responses to form interrogatories directed to Dean without
specifying his capacity. They also served requests for
responses to special interrogatories expressly directed to
Dean in his capacity as representative for the estate, not his
individual capacity.
When responses were not received, Four Seasons and
Rockport reserved a hearing date for a motion to compel
discovery. Dean served verified responses to the discovery
on April 16, 2019. Four Seasons and Rockport considered

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the responses deficient and notified Dean that they would
file motions to compel further responses.
Four Seasons and Rockport attempted to coordinate an
informal discovery conference through email as required by
the presiding judge. No response was received from Dean’s
counsel. When they reserved a date for the informal
discovery conference, the court clerk advised counsel that
the deadline to file motions to compel was extended to the
date of the information discovery conference. The notice of
the information discovery conference stated the same. An
informal discovery conference was held on June 14, 2019.
There was no appearance for Dean. The trial court found
the moving parties had complied with the obligations for the
informal discovery conference and could file a motion to
compel.
On June 18, 2019, Four Seasons and Rockport each
filed a motion to compel further responses to requests for
production of documents from Dean in his individual
capacity and as the representative for the Valerie’s estate.
That same day, Four Seasons and Rockport each filed
motions to compel further responses to form interrogatories
and motions to compel further responses to special
interrogatories from Dean in his individual capacity as well
as his representative capacity. Each motion to compel
further discovery responses requested monetary sanctions of
$2,860 against Dean in his individual capacity and as the
representative of Valerie’s estate, as well as against his
attorney.

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 Dean opposed the motions on several grounds,
including that the motions were untimely and not
accompanied by separate statements. On July 17, 2019,
Four Seasons and Rockport filed a notice of continued
hearing on the motions to compel further discovery
responses. At the same time, they filed amended motions to
compel further discovery responses with separate
statements.
A hearing was held on August 8, 2019, on the motions
to compel further discovery. No reporter’s transcript has
been included in the appellate record on appeal. The minute
order reflects that the trial court found the requests for
further responses were proper and granted the motions. The
trial court found a reduced award of monetary sanctions in
the amount of $1,100 was reasonable, in light of the failure
to include a separate statement with the original motions.

B. Analysis

Unless notice of a motion to compel further responses
to interrogatories or a motion to compel further production of
documents is given within 45 days of service of the verified
response to the discovery request, or a specific later date to
which the parties have agreed in writing, the propounding
party waives any right to compel a further response to the
interrogatories. (§§ 2030.300, subd. (c), 2031.310, subd. (c).)
Compliance with the 45 day time for notice of a motion
to compel further responses to interrogatories or production

46
of documents is not jurisdictional in the fundamental sense,
but is jurisdictional in that “it renders the court without
authority to rule on motions to compel other than to deny
them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th
1403, 1410, fn. omitted.) Failure to timely move to compel
within the specified period constitutes a waiver of any right
to compel a further response. (Ibid.)
In this case, Dean contends the original discovery
motions were directed to him in his representative capacity
for the estate, not his individual capacity, and therefore,
motions to compel further responses could not be granted
against him in his individual capacity. We agree with Dean
that the discovery motions served by Four Seasons and
Rockport in January 2019, were directed to Dean in his
purported representative capacity for the estate, and
therefore, motions to compel further responses could not be
granted against Dean in his capacity as an individual
plaintiff.
In addition, the motions to compel further responses
from Dean as the purported representative of the estate
were filed outside the time limit permitted under the
discovery statute. Although Four Seasons and Rockport may
have acted with substantial justification in filing motions to
compel further responses as directed by the court, based on
the record on appeal, the trial court lacked jurisdiction to
grant the motions. The order granting the motions to compel
further responses must be reversed.

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 DISPOSITION

The judgment, the order granting summary
adjudication, and the order granting the motion to compel
further discovery responses are reversed. The trial court is
directed to enter a new and different order denying
summary adjudication as to Dean Donnell’s individual cause
of action for wrongful death against Four Seasons, and
otherwise granting the motion for summary adjudication of
the remaining issues against Four Seasons and Rockport.
The trial court is also directed to enter a new and different
judgment in favor of Rockport. The parties are to bear their
own costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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