Steger v. CSJ Providence St. Joseph Medical Center CA2/5

Filed 8/16/21 Steger v. CSJ Providence St. Joseph Medical Center CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JASON STEGER, B304043

Plaintiff and Appellant,

v. (Los Angeles County

CSJ PROVIDENCE ST. JOSEPH Super. Ct. No. BC691050)
MEDICAL CENTER,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Ralph C. Hofer, Judge. Affirmed.

Lindemann Law Firm, Blake J. Lindemann and Donna R.
Dishbak for Plaintiff and Appellant.

Fraser Watson & Croutch, Stephen C. Fraser, Daniel K.
Dik and Karine Mkrtchyan for Defendant and Respondent.
 ________________________________
Appellant Jason Steger appeals from a judgment entered in
favor of Respondent CSJ Providence St. Joseph Medical Center
(“the Hospital”) granting the Hospital’s motion for summary
judgment on Steger’s complaint alleging medical malpractice. On
appeal, Steger asserts in his opening and reply briefs: (1) the
trial court erred in requiring him to present expert evidence on
the issue of ostensible agency; and (2) the Hospital failed to
demonstrate that the doctors who treated him were independent
contractors, and did not establish that the treatment he received
met the standard of care. In supplemental briefing invited by
this court, Steger contends there are material issues of fact
regarding whether the doctors were agents or ostensible agents of
the hospital. Alternatively, he asserts that because the trial
court never ruled on whether the doctors who treated him were
the Hospital’s agents or ostensible agents, he did “not have an
adequate opportunity to present evidence or conduct discovery”
on the issues and thus he requests an additional opportunity to
conduct discovery and litigate the agency issues in the trial court.
As we shall explain, the Hospital satisfied its initial burden to
present evidence that the doctors were independent contractors
and not agents or ostensible agents of the Hospital. Steger
effectively abandoned any theory of actual agency, and he had a
full opportunity to address ostensible agency in the trial court
proceedings, but he failed to present a triable issue of fact on that
issue. Thus, the court properly granted the Hospital’s motion,
and therefore, we affirm the judgment.

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 FACTS AND PROCEDURAL BACKGROUND

A. Allegations of the Complaint

In January 2018, Steger filed a complaint alleging one
cause of action for medical malpractice against the Hospital, Dr.
John Kasher and Dr. James Kao (collectively “the Doctors”), and
other physicians.1 Steger’s complaint alleged that in late October
2016, he was admitted to the Hospital complaining of abdominal
pain. While there, the Doctors negligently performed a procedure
that perforated his colon. As a result, Steger alleged that he
went into septic shock and suffered other injuries that required
unnecessary procedures, including the removal of his colon. He
further claimed that before the surgery to remove his colon, the
Doctors failed to obtain his informed consent for the procedure.
Steger also alleged that the Doctors misdiagnosed his condition
as ulcerative colitis and failed to refer him to an expert to receive
appropriate care. Steger pled that all of the defendants were
individually liable and vicariously liable for the conduct of their
co-defendants based on agency.
The Hospital answered the complaint, denied Steger’s
allegations, and asserted affirmative defenses, including that its
conduct complied with the governing standard of care, lack of
causation, and absence of any agency relationship between the
Hospital and the Doctors.

1Prior to the summary judgment proceedings, Steger
resolved the claims against the other physicians named as
defendants in his complaint.

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 B. Motion for Summary Judgment and Supporting
Evidence

In June 2019, the Hospital filed a motion for summary
judgment on several separate grounds, including that the care
and treatment the Hospital and its employees provided to Steger
complied with the standard of care in the medical community and
did not cause Steger’s injuries.2 The Hospital also argued that it
was entitled to summary judgment because it was not ostensibly
liable for the actions or inactions of the Doctors because they
were independent contractors and were not the Hospital’s
employees or agents. The Hospital maintained that based on the
notices that Steger signed when he was admitted to the Hospital
and before the procedure during which he claimed he was
injured, Steger knew that the Doctors who treated him were
independent contractors, and thus, the Hospital was not liable for
their actions.

2 The Doctors separately filed a motion for summary
judgment, arguing that they were not negligent in treating
Steger. They supported their motion with a declaration from a
medical expert who opined that the care they provided was
appropriate and did not injure Steger. In opposition to the
Doctors’ motion, Steger presented the expert declaration of Dr.
Tawhid Gazi, a gastroenterologist, who opined that the treatment
provided by the Doctors fell below the requisite standard of care
and harmed Steger. In August 2019, the trial court denied the
Doctors’ summary judgment motions, finding that Steger had
raised a triable issue of fact as to the negligent conduct of the
Doctors.

4
 In support of the motion, the Hospital submitted portions of
Steger’s deposition and his medical records. Steger’s records
disclosed that ten years before the events giving rise to his claim,
Steger’s doctors at Kaiser Permanente had diagnosed him with
ulcerative colitis. The records also showed that Steger had a
history of acute, chronic colitis, ulcerative colitis, and left-sided
colitis with rectal bleeding. Steger’s primary care doctor referred
him to the Hospital and the Doctors, who operated a private
practice as gastroenterologists at Lakeside Community
Healthcare, which contracted to provide services to the Hospital.
Between September 2015 and late October 2016, the Doctors
treated Steger for his chronic colitis.3
The records further showed that on October 25, 2016,
Steger, then 39 years old, came to the Emergency Department at
the Hospital with complaints of abdominal pain and constipation.
He also explained that his pain was moderate but was getting
worse. He reported having blood-tinged loose stool several times
a day. At the time, Steger’s condition was stable and his vital
signs were within a normal range. His records also disclosed that
when he was admitted to the Hospital, he was coherent, alert,
and speaking in complete sentences, expressing frustration about
his pain and condition.
Following an examination and review of his medical
history, the emergency medicine doctor diagnosed Steger with
ulcerative colitis with rectal bleeding. The doctor recommended

3The record discloses that prior to his treatment at the
Hospital in October 2016, the specific hospital stay identified in
the complaint, Steger was admitted for treatment at the Hospital
from July 31, 2016 to August 9, 2016 for the same condition.

5
that Steger be admitted to the Hospital and that Steger undergo
additional testing.
After Steger was admitted, codefendant Dr. Kao had a
surgical consultation with Steger. At the time, Steger refused to
undergo surgery or take antibiotics because he wanted to wait for
further test results. Thereafter, Steger underwent a
sigmoidoscopy performed by codefendant Dr. Kasher. The
sigmoidoscopy could only be partially completed because of the
severity of the colitis and the risk of perforation of the colon. The
procedure confirmed that Steger had severe colitis throughout his
rectum and sigmoid colon, including deep ulcers and bleeding. It
was recommended that Steger remain in the Hospital to receive
treatment and to rule out other causes for Steger’s conditions.
The Doctors further recommended that if the therapies were
ineffective, a surgical intervention, including removing part or all
of the colon, be considered.
The day after the sigmoidoscopy, Steger began to complain
of worsening pain in his abdomen and chest. Follow-up
evaluation and testing revealed that his colon was perforated and
that he had developed peritonitis. Steger underwent immediate
surgery, which resulted in, among other various procedures, the
removal of his colon. His post-operative results revealed
diagnosis, including inflammatory bowel disease, consistent with
Crohn’s disease, extensive ulceration, and acute serositis. Steger
remained in the ICU and was subsequently diagnosed with
sepsis, among other conditions. After further treatment, Steger’s
condition improved. In December 2016, he was released from the
Hospital.
In addition to Steger’s medical records and deposition
testimony, the Hospital also supported its motion for summary

6
judgment with the declaration of expert gastroenterologist
Jacques Van Dam, M.D. Dr. Van Dam opined that based upon
his knowledge and training, and his review of Steger’s medical
records and deposition testimony, the care and treatment
provided to Steger by the Hospital and its employees complied
with the standard of care in the medical community. Dr. Van
Dam also stated that the Hospital’s nursing personnel
appropriately treated Steger and acted appropriately at all times,
including carrying out the directives of Steger’s doctors. Dr. Van
Dam observed that the nature and the scope of the procedures
performed on Steger were determined by the physicians and not
the nursing or non-physician staff. He further opined that
nothing the Hospital or its employees did (or did not do) caused
Steger’s injuries, including his perforated colon.
The Hospital also submitted the declaration of Susan
Parrini, the Director of Professional Staff Services at the
Hospital. She stated that the Doctors were independent
contractors and not employees or agents of the Hospital. She
stated that the Doctors had staff privileges related to their
practice at Lakeside Community Healthcare. They also had
limited permission to use certain facilities located on the
Hospital’s premises.
In support of its claim that Steger knew that the Doctors
were independent contractors and not the Hospital’s agents or
employees, the Hospital submitted the “Conditions of Admission”
that Steger initialed and signed when he was admitted to the
Hospital on October 25, 2016, and the “Authorization for and
Consent to Surgery Special Diagnostic or Therapeutic
Procedures” (the “Authorization”) that Steger signed before he

7
underwent the sigmoidoscopy on October 27, 2016. The
Conditions of Admission provided:
“PHYSICIANS ARE INDEPENDENT
CONTRACTORS: The undersigned
recognizes that all physicians, physician
assistants, and surgeons furnishing
service to the patient, including the
radiologist, pathologist, anesthesiologist,
emergency room physician, physician
assistants, and the like, are independent
contractors and are not employees or
agents of the hospital.”

The Authorization form provided:

“I understand that the person or persons
in attendance at such operations or
procedures, as indicated above,[4] for the
purpose of administering anesthesia, and
the person or persons performing other
specialized professional services, such as
radiology, pathology, and the like, are not
the agents, servants or employees of the
above named medical center or of the
above named physician and surgeon, but
are independent performing specialized
services on my behalf.”

4 Codefendant Dr. Kasher was identified on the
Authorization form as performing the procedure.

8
 At his deposition, Steger identified his signature on the
Conditions for Admission and his initials next to the specific
condition concerning the Doctors’ status as independent
contractors. Steger testified that he had a vague recollection of
the form but did not remember reading it; he speculated that he
could not recall reading it because “maybe” he was worried about
other things going on in his body at the time. He did, however,
concede it would have been his habit and custom to read and
review the document unless he was incoherent. Steger also
identified his signature on the Authorization form.5

C. Opposition to Motion for Summary Judgment and
Supporting Evidence

Steger opposed the motion for summary judgment. He
argued that triable questions of fact existed requiring a trial.
Steger clarified that he did not seek to hold the Hospital directly
liable for the conduct of its nursing staff and non-physician
employees and was not opposing the Hospital’s motion on that
basis. Steger also took the position that it was unnecessary for
him to submit an expert declaration in opposition to the
Hospital’s motion on the issue of negligence because he did not
claim that the Hospital’s nursing staff and employees were
negligent and also because the court had already found that a

5When previously admitted to the Hospital on July 31,
2016, Steger signed another Conditions of Admission form
containing an advisement paragraph titled “PHYSICIANS ARE
INDEPENDENT CONTRACTORS” that contained identical
language to the form signed upon his admission in October 2016.

9
triable issue of fact existed as to the Doctors’ negligence in
connection with the Doctors’ motion for summary judgment.
Instead, Steger argued that his claim against the Hospital was
premised on the theory of vicarious liability—that the Doctors
who committed the malpractice were ostensible agents of the
Hospital, and thus the Hospital was vicariously liable for their
conduct.
Steger further asserted that a triable issue existed on the
application of ostensible agency. He argued that when a hospital
provides “emergency care,” it is precluded, as a matter of law,
from defending itself based on a claim that it provided notice in
admission documents about the doctor’s status as an independent
contractor. In addition, he contended that when he was admitted
to the Hospital, he was in no condition to understand the
Conditions of Admission. Steger also maintained that the
Authorization form he signed before his sigmoidoscopy procedure
was ambiguous as to whether it provided notice of the
independent contractor status of everyone involved in the
procedure, including the Doctors, or only the other healthcare
professionals providing professional services during the
procedure.
In support of his opposition, Steger submitted his
declaration in which he stated that he was never told that the
Doctors were independent contractors. He believed the Doctors
were the Hospital’s agents or employees based on statements of
his primary care physician, who referred him to the Doctors and
the Hospital, and on statements of the Hospital’s clinic’s
registration clerk that his health insurance plan required that he
be treated by Hospital employees, and because the Doctors’
practice was located on the Hospital’s premises, and the Doctors

10
used the Hospital’s equipment. Steger also declared that he was
“not of the right state of mind” to focus on the notices “based on
the medication I was taking, my conditions, and my symptoms.”
Finally, in the alternative, Steger argued that the court
should grant a continuance of the motion so that he could obtain
additional discovery on the Hospital’s relationship with the
Doctors.6

D. Reply, Evidentiary Objections, and Trial Court
Ruling

The Hospital filed a reply, arguing that the existence of
ostensible agency could be decided as a matter of law, that the
notices in the Conditions of Admission and Authorization form
were valid and apprised Steger of the Doctors’ status as
independent contractors and that Steger had failed to raise a
triable issue of fact as to the notices’ validity or his capacity to
read and understand them. The Hospital pointed out that Steger
failed to present expert testimony on the issue of whether the
Hospital and its personnel committed malpractice and opposed
the request for a continuance. The Hospital also filed objections
to Steger’s declaration on various grounds, including hearsay,
and that his statements contradicted his deposition testimony.
Several days before the hearing on the motion for summary
judgment, the court issued its tentative ruling disclosing its
intent to grant the Hospital’s motion. The court ruled that Dr.

6Steger’s counsel did not support the request for a
continuance with a declaration describing the basis for
requesting the continuance—what evidence he expected to
develop or the need for additional discovery.

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Van Dam’s declaration established that the Hospital’s conduct
was within the applicable standard of care, and thus, the burden
shifted to Steger to raise triable issues of material fact. The court
further observed that Steger had failed to submit any expert
medical testimony in opposition to the motion. The court
determined that Steger’s assertion that the court had previously
found a material dispute of fact as to whether Dr. Kasher and Dr.
Kao were negligent “only goes so far here,” because Steger “in
opposition to this motion has failed to offer any expert medical
evidence establishing that [the Doctors’ conduct] fell below the
standard of care or [that they] engaged in acts or omissions which
were the medical cause of [Steger’s] injuries.” The court noted
that the Hospital’s reply pointed out that “there is no evidence
before the moving defendant to challenge with respect to these
issues, even if plaintiff were to successfully raise issues with
respect to ostensible or some other theory of agency.” The court
concluded that in the absence of such evidence, “triable issues
have not been raised, and the motion is granted.”
The court also denied Steger’s request for a continuance
because he failed to support it with a declaration of counsel
attesting to the need for additional time to conduct discovery.
On the day of the hearing, Steger’s counsel attempted to
file the declaration of Dr. Gazi that he had previously filed in
opposition to the Doctors’ motions for summary judgment. In his
declaration in support of the filing, Steger’s counsel conceded that
he could have filed Dr. Gazi’s declaration in support of Steger’s
opposition to the Hospital’s motion but had made a strategic
decision not to file an expert declaration on the issue of the
Doctors’ negligence because he thought it was unnecessary. In
addition, in Steger’s counsel’s view, the Hospital had failed to

12
carry its initial prima facie burden on the motion to demonstrate
the Doctors were not negligent.
On September 6, 2019, at the hearing on the motion, Steger
argued that the Hospital had not carried its burden on the issue
of the Doctors’ negligence because Dr. Van Dam’s opinion was
limited to the conduct of the Hospital’s non-physician employees
and nursing staff. He pointed out that Dr. Van Dam did not offer
an opinion on whether the Doctors were negligent and that
because Steger did not seek to hold the Hospital liable based on
the conduct of its non-physician staff, he did not need to present
expert evidence on the issue of negligence.
Steger also asked the court to rule on the existence of
ostensible agency presented in the parties’ respective papers.
Steger argued that he had presented evidence that the Doctors
were ostensible agents of the Hospital, sufficient to raise a triable
issue on the issue of agency. The Hospital responded that the
notices in the Conditions of Admission and the Authorization
form put Steger on notice of the relationship between the
Hospital and the Doctors and thus eliminated liability for the
Hospital based on the theory of ostensible agency. After hearing
additional arguments on the issue of ostensible agency, the court
indicated that the tentative ruling would become the final order
of the court.
Steger subsequently filed a motion “for a new trial” and a
“motion to partially set aside the judgment” under Code of Civil
Procedure section 473, subdivision (b).7 In his post-judgment
motions, Steger sought to have the court consider his expert

7 All
statutory references are to the Code of Civil
Procedure, unless stated otherwise.

13
evidence from Dr. Gazi on the issue of the Doctors’ negligence.8
The court denied the motions, finding that Steger failed to
establish any basis for relief. The trial court also stated that no
matter how it characterized the Doctors’ employment
relationship with the Hospital, and even if the Hospital was
vicariously liable for the Doctors’ conduct, Steger’s failure to raise
a triable issue on the Doctors’ negligence was dispositive. Thus,
in the court’s view, it was not required to rule on the application
of the ostensible agency theory of liability.
Steger timely appealed.

DISCUSSION

A. Standard of Review

“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (§
437c, subd. (c).) A defendant moving for summary judgment
meets this burden by presenting evidence demonstrating that one

8 At the hearing on the summary judgment motion, the
court observed that because it had previously reviewed Dr. Gazi’s
declaration in connection with the Doctors’ summary judgment
motion, it had also considered Dr. Gazi’s opinions in connection
with the Hospital’s summary judgment motion.

14
or more elements of the cause of action cannot be established or a
complete defense to the action. (§ 437c, subd. (p)(2); Aguilar, at
pp. 853–854.) Once the defendant makes this showing, the
burden shifts to the plaintiff to show the existence of a triable
issue of material fact as to that cause of action or defense. (§
437c, subd. (p)(2); see Aguilar, at p. 850.)
When the facts are undisputed, the court may grant
summary judgment on issues that otherwise could have been
submitted to the jury because “[a]n issue of fact becomes one of
law and loses its ‘triable’ character if the undisputed facts leave
no room for a reasonable difference of opinion.” (Ostayan v.
Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418,
disapproved on other grounds in Black Sky Capital, LLC v. Cobb
(2019) 7 Cal.5th 156, 165.) Thus, the defendant is entitled to
summary judgment if the record establishes as a matter of law
that none of the plaintiff’s asserted causes of action can be
maintained. (Aronson v. Kinsella (1997) 58 Cal.App.4th 254,
270.)
To determine whether the parties have met their respective
burdens on summary judgment, the court considers “‘all of the
evidence set forth in the [supporting and opposition] papers,
except that to which objections have been made and sustained by
the court, and all [uncontradicted] inferences reasonably
deducible from the evidence.’ [Citation.]” (Artiglio v. Corning
Inc. (1998) 18 Cal.4th 604, 612.) A plaintiff opposing summary
judgment cannot rely upon the mere allegations or denials of its
pleadings, but “shall set forth the specific facts” based on
admissible evidence showing a triable issue exists. (§ 437c, subd.
(p)(2); Borders Online v. State Bd. of Equalization (2005) 129
Cal.App.4th 1179, 1188.) In the court’s discretion, the plaintiff’s

15
failure to comply with this requirement may constitute sufficient
grounds for granting the motion. (See Oldcastle Precast, Inc. v.
Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554,
568.)
An appellate court independently reviews an order
granting summary judgment. (Aguilar, supra, 25 Cal.4th at p.
860.) We determine whether the court’s ruling was correct, not
its reasons or rationale. (Salazar v. Southern Cal. Gas Co. (1997)
54 Cal.App.4th 1370, 1376; Knapp v. Doherty (2004) 123
Cal.App.4th 76, 85 [“We need not defer to the trial court and are
not bound by the reasons for [its] summary judgment ruling; we
review the ruling of the trial court, not its rationale”].) “In
practical effect, we assume the role of a trial court and apply the
same rules and standards which govern a trial court’s
determination of a motion for summary judgment.” (Zavala v.
Arce (1997) 58 Cal.App.4th 915, 925.) “‘In performing our de novo
review, we must view the evidence in a light favorable to plaintiff
as the losing party [citation], liberally construing [the plaintiff’s]
evidentiary submission while strictly scrutinizing [defendant’s]
own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.’ [Citations.]” (United Parcel
Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1009;
accord, Aguilar, supra, 25 Cal.4th at p. 843.) We apply these
standards here.

B. The Trial Court Properly Granted Summary
Judgment for the Hospital.

The Hospital’s motion articulated two grounds for
summary judgment: (1) that the conduct of the Hospital and its

16
employees did not fall below the standard of care and did not
cause Steger’s injuries, and (2) that the Hospital was not liable
for malpractice under the ostensible agency theory because
Steger was aware that the Doctors who allegedly injured him
were independent contractors and not employees or agents of the
Hospital.
In his complaint, Steger alleged direct and vicarious
liability against all of the defendants. However, in Steger’s
opposition to the Hospital’s motion for summary judgment, he
effectively abandoned the claim of direct liability against the
Hospital and its employees. Steger clarified that he was
proceeding against the Hospital only under the theory that the
Hospital was vicariously liable for the conduct of the Doctors, and
therefore he was not required to refute the expert evidence
presented in Dr. Van Dam’s declaration that neither the Hospital
nor its employees committed malpractice.
Thus, Steger’s case against the Hospital required that he
prove that the Doctors were ostensible agents of the Hospital and
that the Doctors committed malpractice. In such cases of
vicarious liability, as here, the Hospital’s liability is wholly
derived from the liability of the Doctors; the Hospital cannot be
held vicariously liable unless the Doctors are found responsible.
(Lathrop v. HealthCare Partners Medical Group (2004) 114
Cal.App.4th 1412, 1426 [“There can be no vicarious liability in a
medical malpractice action without the underlying liability of the
medical practitioner”].) Recognizing this point of law, the trial
court based its decision to grant summary judgment on its
determination that Steger failed to present a triable issue of fact
as to the negligence of the Doctors.

17
 As we shall explain, however, the Hospital was entitled to
judgment on the other ground raised in its motion—the Hospital
was not liable for alleged malpractice under the ostensible agency
theory because Steger was on notice that the Doctors were not
the employees or agents of the Hospital. Indeed, “ ’[a]s a
corollary of the de novo review standard, the appellate court may
affirm a summary judgment on any correct legal theory, as long
as the parties had an adequate opportunity to address the theory
in the trial court. [Citation.]’ [Citation.]” (California School of
Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)
Here, the record shows the parties litigated the application
of the ostensible agency liability theory in the trial court. The
Hospital argued the issue in the moving papers, and Steger
addressed it in his opposition. Both parties also argued the
application of the theory during the summary judgment hearing
and post-judgment proceedings. In addition, the Hospital and
Steger have argued the matter here. Moreover, even though both
parties fully litigated the application of the ostensible agency
doctrine in the trial court and in their appellate briefs in this
court, they were given yet another opportunity to address the
matter when we allowed them to file supplemental briefs after
oral argument. (See § 437c, subd. (m)(2) [affording the parties an
opportunity to present supplemental appellate briefs when
reviewing court affirms an order granting summary judgment on
a ground not relied upon by the trial court].) 9 Thus, even

9 In our view, given the record on appeal and the briefs,
section 437c, subdivision (m)(2), did not require that we provide
Steger with an additional opportunity to brief the ostensible
agency doctrine in this court before affirming the trial court’s
grant of summary judgment on that ground. (See Hooked Media

18
though it was not the basis of the trial court’s decision to grant
summary judgment, this court can consider and affirm the
judgment if we conclude that there is no triable issue as to the
application of the ostensible agency theory of liability. We,
therefore, turn to the merits of the Hospital’s assertion that it is
entitled to summary judgment against Steger because the
Doctors who allegedly committed the malpractice were
independent contractors and not ostensible agents of the
Hospital. Our analysis begins with an examination of the law
governing the ostensible agency liability theory.

Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 336, fn. 1
[where party already “has been afforded an opportunity to
present its views, no supplemental briefing is required”]; Bains v.
Moores (2009) 172 Cal.App.4th 445, 471, fn. 39 [acknowledging
the purpose of supplemental briefing under section 437c,
subdivision (m)(2), is to allow the parties a full and fair
opportunity to brief the dispositive issues, and concluding that
where issues were raised below and fully addressed in the
appellate briefs, the purpose of section 432c, subdivision (m)(2), is
met and no supplemental briefing is required].) Nevertheless, in
this case, out of an excess of caution we permitted the parties to
file supplemental briefing to further address the merits of
affirming the trial court’s grant of summary judgment on the
ostensible agency theory and to argue whether “additional
evidence relating to that ground exists, but [Steger] has not had
an adequate opportunity to present the evidence or to conduct
discovery on the issue.” (§ 437c, subd. (m)(2).)

19
 1. Ostensible Agency Theory of Medical
Malpractice Liability.

In general, a principal is not vicariously liable for the
negligent acts of an independent contractor. (Hill Brothers
Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001,
1008.) However, in the medical context, vicarious liability has
been extended to a hospital entity under a theory of ostensible
agency for the acts of non-employee physicians who perform
services on hospital premises. (See, e.g., Ermoian v. Desert
Hospital (2007) 152 Cal.App.4th 475, 507–510 [finding that the
patient had presented substantial evidence of the hospital’s
conduct that lead the patient to reasonably believe that the
doctors were ostensible agents of the hospital]; Mejia v.
Community Hospital of San Bernardino (2002) 99 Cal.App.4th
1448, 1453–1459 (Mejia) [reversing an order granting nonsuit for
the hospital because the patient presented sufficient evidence to
establish that radiologist was the ostensible agent of hospital].)
A physician is the ostensible agent of a hospital if the hospital
intentionally or negligently causes the patient to believe the
physician is the hospital’s agent. (Mejia, at p. 1453, 1456; Civ.
Code, § 2300 [“An agency is ostensible when the principal
intentionally, or by want of ordinary care, causes a third person
to believe another to be his agent who is not really employed by
him”]; see also Civ. Code, § 2317.) Thus, to hold a hospital liable
for a physician’s negligence under an ostensible agency theory,
the patient must demonstrate that the hospital engaged in
conduct that would cause a reasonable person to believe the
physician was the hospital’s agent and that the patient relied on

20
the apparent agency relationship. (Markow v. Rosner (2016) 3
Cal.App.5th 1027, 1038 (Markow).)
In that case, the hospital is vicariously liable for negligence
on an ostensible agency theory, “unless (1) the hospital gave the
patient actual notice that the treating physicians are
[independent contractors and] not hospital employees, and (2)
there is no reason to believe the patient was unable to
understand or act on the information, or (3) the patient was
treated by his or her personal physician and knew or should have
known the true relationship between the hospital and physician.”
(Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th
866, 884 (Wicks).) Consequently, to defeat a medical malpractice
claim based on allegations that the non-employee doctors were
the hospital’s ostensible agents, the hospital must demonstrate
that the patient had some reason to know and capacity to
understand the actual relationship between the hospital and the
physician—i.e., because the hospital gave the patient actual
notice of the independent contractor status or because the
patient’s personal physician provided the treatment. (Markow,
supra, 3 Cal.App.5th at p. 1038.)
Although the existence of ostensible agency is a factual
issue, it may be resolved on a motion for summary judgment,
where the undisputed evidence indicates that the patient knew or
had reason to know and the capacity to understand that the
treating physician was not the hospital’s agent. (See, e.g., Wicks,
supra, 49 Cal.App.5th at p. 884.) In Wicks, for example, the
appellate court affirmed the order granting summary judgment
for the hospital on the issue of ostensible agency where the
undisputed evidence showed the hospital gave Mr. Wicks
meaningful written notice that his doctors were independent

21
contractors rather than hospital employees, and that Mr. Wicks
had the capacity to acknowledge the notice. (Ibid.) In affirming,
the court of appeal observed that the evidence demonstrated that
at the time he arrived at the emergency department and was
admitted to the hospital, Mr. Wicks was alert, oriented, and
cooperative, and that shortly thereafter, Mr. Wicks signed
admission documents containing the notice that the staff
physicians were not employees or agents of the hospital. (Ibid.;
Compare, Whitlow v. Rideout Memorial Hospital (2015) 237
Cal.App.4th 631, 640 (Whitlow) [reversing order granting
summary judgment for hospital defendant because plaintiff
patient presented a triable issue of fact based on eye witness
accounts and expert evidence that patient’s deteriorating
condition prevented her from comprehending the notice in
hospital admission forms that physicians were independent
contractors].)
With these principles in mind, we turn to whether the
Hospital negated the inference of ostensible agency in its motion
for summary judgment.

a. The Hospital Satisfied Its Initial
Burden on Summary Judgment to
Refute Application of the Ostensible
Agency Theory of Liability.

The undisputed evidence shows that Steger sought
treatment at the Hospital on October 25, 2016. After he was
admitted to the Hospital, the Doctors conducted various medical
procedures on him using the Hospital’s equipment. These facts
create the inference that the Doctors were the Hospital’s

22
ostensible agents at the time Steger suffered the injuries alleged
in the complaint. Thus, as part of its initial burden in moving for
summary judgment, the Hospital was required to negate the
ostensible agency inference by establishing that Steger knew or
had reason to know and capacity to understand that the Doctors
were not the Hospital’s agents when they rendered the allegedly
negligent treatment. In our view, the Hospital met its burden on
this issue.
First, the Hospital presented evidence that it gave Steger
actual notice of their status as independent contractors.10
Specifically, Steger signed and initialed the Conditions of
Admission form that unequivocally advised him that all
physicians providing services at the Hospital were independent

10 Although not necessarily determinative of the
application of ostensible agency doctrine, we note that the
Hospital also presented uncontroverted evidence from the
Hospital’s Director of Staff Services, Ms. Parrini, who, after
specifically identifying the Doctors by name (i.e., Dr. Kasher and
Dr. Kao) among other physicians involved in Steger’s care, stated
that the “defendant physicians sued in this action were
independent contractors, not employees or agents of [the
Hospital].”
In an effort to revive on appeal an actual agency theory,
Steger’s counsel misrepresents the record, incorrectly stating: Ms.
Parrini “never declares that Dr. Kasher and Dr. Kao were
independent contractors.” Based on this false representation,
Steger’s counsel asks for additional discovery into the
relationship between the Doctors and the Hospital. Having
abandoned an actual agency theory below, and having failed to
contest the clear evidence that the Doctors were independent
contractors, Steger’s last minute request to proceed on an actual
agency theory is not well taken.

23
medical providers and that none were employees or agents of the
Hospital.11 After that, before the sigmoidoscopy, he signed the
Authorization form that apprised him of the independent
contract relationships of those involved in the procedure. The
Hospital also presented evidence from Steger’s deposition during
which he identified his signature and initials on these documents
and conceded that even though he did not recall reading the
documents, he would have read and reviewed them unless he was
incoherent.
Second, the Hospital also presented evidence that Steger
had the mental acuity to understand the notices. Steger’s
medical records showed he was coherent, alert, and
communicative when he was admitted to the Hospital. The
evidence showed that when he signed these forms, Steger had the
presence of mind to describe his current condition and his history
of treatment, and that he was able to express frustration over his
situation. The evidence that he initially refused surgical
intervention and certain medications further demonstrates that
he could reflect and make decisions about his treatment and
express his wishes. The records also show that although he was
in pain, his condition was stable, and his vital signs were within
normal limits at the time. The totality of this evidence

11 The Hospital also introduced documents from Steger’s
prior hospitalization in late July and early August of 2016,
including another Conditions of Admission form containing his
signature, in which he acknowledged that the Doctors treating
him were independent contractors, and not Hospital employees.
This prior acknowledgement in the Conditions of Admission form
underscores the Hospital’s argument that Steger had notice of
the Doctors’ status as independent contractors and not Hospital
employees.

24
demonstrates that Steger had the capacity to understand the
notice, and had reason to know that the Doctors were
independent contractors, not the Hospital’s employees or agents.
The Hospital’s evidence negated the application of the ostensible
agency theory and thus shifted the burden to Steger to present a
triable issue on the ostensible agency theory.

b. Steger Failed to Demonstrate a Triable
Issue of Material Fact on Ostensible
Agency.

Steger’s opposition to the Hospital’s motion contained
several responses addressing the application of the ostensible
agency theory, none of which, in our view, raises a triable issue
warranting a trial.
Steger does not deny the existence of the notices in the
Condition of Admission and the Authorization form. Instead, he
assails them, arguing that they are legally invalid and ineffective
because when he signed the forms, he was in no condition to
understand them.12
As to his attack on the notices’ legal validity, he cites to an
observation in Mejia that such notices are legally infirm when

12 In an apparent effort to avoid the import of the Condition
of Admission and Authorization forms that Steger signed when
admitted through the emergency room, Steger’s counsel stated in
oral argument that the theory of his case had nothing to do with
Steger’s admission through the emergency room and that the
forms signed there were irrelevant. In the supplemental briefing
permitted by the court, Steger’s counsel again does an about face,
disclaiming the oral argument statements and conceding the care
in the emergency room is part of his case.

25
the treatment involves “emergency care.” (Mejia, supra, 99
Cal.App.4th at p. 1454 [“Many courts have even concluded that
prior notice may not be sufficient to avoid liability in an
emergency room context, where an injured patient in need of
immediate medical care cannot be expected to understand or act
upon that information”].) We are not convinced the statement in
Mejia reflects the current California law. Notably, Mejia’s
reference summarizes the case law of other states, specifically
Ohio, Indiana, and South Carolina. In addition, the statement is
dicta. Although the patient in Mejia was treated in the
emergency room, there was no evidence that the hospital
provided the patient with any admission document containing a
notice about the employment relationships between the doctors
and the hospital. (Id. at pp. 1450–1452.)
Moreover, the Wicks court implicitly rejected the dicta in
Mejia, stating that “Hospitals providing emergency care to
members of the public who do not have an appointment or any
relationship with the staff physicians have no practical means to
give such notice before a patient is admitted. Were we to accept
plaintiffs’ argument that defendant may be liable in this case for
the negligence of its ER doctors, there would be no circumstance
under which actual notice to an ER patient of an ER doctor’s
status as an independent contractor would suffice to avoid a
hospital’s liability for the doctor’s negligence.” (Wicks, supra, 49
Cal.App.5th at pp. 884–885.) In our view, based on Wicks and
Whitlow, it appears that the application of the doctrine is
determined by the totality of the circumstances in which the

26
notice was provided to the patient, not solely on whether the
patient sought “emergency care.”13
Steger also attacks the legal validity of the notice in the
Authorization form, arguing that it is ambiguous. He asserts
that it is unclear whether notice applied to the Doctors or only to
the other healthcare professionals involved in the sigmoidoscopy
procedure. Even if we were to adopt Steger’s interpretation of
the Authorization form, Steger does not address the notice
provided in the Conditions of Admission, which is unequivocal,
providing “all physicians . . . are independent contractors and are
not employees or agents of the hospital.” This language is broad
and unambiguous. Steger has not refuted that it covers the
entirety of the treatment he received in the Hospital, including
the procedures performed by the Doctors. Thus, the notice in the
Condition of Admission, standing alone, defeats the application of
the ostensible agency theory of liability here. (See Markow,
supra, 3 Cal.App.5th at p. 1041, fn. 5 [observing that a patient
need not be advised of physician’s independent contractor status

13Nothing in this opinion should be read to suggest that a
hospital providing notice of the independent contractor status of
various medical professionals in a Conditions of Admission form
given to a patient in an emergency room setting negates the
application of ostensible agency liability in every case. Indeed,
as the facts of Whitlow and Wicks demonstrate the
determination of this issue is case specific. The full context and
circumstances of the presentation of admission forms, including
among other factors, the language of and appearance of the
notice and the condition of the patient are determinative of the
issue.

27
more than once to receive adequate notice from the hospital that
the doctors are independent contractors].)
As to Steger’s assertion that the notice was ineffective
because he lacked the capacity to comprehend it, Steger has not
brought forward admissible evidence to controvert the Hospital’s
evidence on this point. Steger failed to provide evidence
suggesting he received and signed the Conditions of Admission
under circumstances in which he could not be expected to
understand or act upon the information. Steger has not
challenged his medical records, which disclosed that his condition
was stable and he was coherent when he signed the document.
Instead, he relies on statements in his deposition and his
declaration in support of his opposition to the motion in which he
states that “maybe” he was worried about other things and he
was “not in the right state of mind” because of his “condition” and
unspecified “medication,” and “symptoms” when he executed the
admissions document. Steger’s non-specific and speculative
statements about his mental state and condition are insufficient
to raise a triable issue as to his capacity to understand the
information in the notice. (See Wiz Technology, Inc. v. Coopers &
Lybrand (2003) 106 Cal.App.4th 1, 11 [holding that where the
opposition to a motion for summary judgment presented
speculation in place of specific facts, the trial court correctly
granted summary judgment]; see also Preach v. Monter Rainbow
(1993) 12 Cal.App.4th 1441, 1451 [A party may not create a
triable issue of fact to defeat summary judgment merely through
a self-serving declaration; in determining whether a triable
factual issue exists, the court may “disregard contradictory” or
“self-serving affidavits of the party”].)

28
 In addition, Steger has not brought forward any other
evidence raising a triable issue of fact about the application of the
ostensible agency theory. Steger’s subjective belief that the
Doctors were employees or agents of the Hospital derived from
other facts such as the statements of the doctor that referred him
to the Hospital, the registration clerk at the Hospital’s clinic, the
location of the Doctors’ practice, the Doctors’ use of the Hospital’s
equipment, or the after the fact remark Steger attributes to the
hospital clerk that the Doctors were “terminated employees,”
does not invalidate the express clause denying the existence of an
agency relationship. In reaching this conclusion, we are mindful
of the general rule that when a person with the capacity to read
and understand an instrument signs it, they are, in the absence
of fraud and imposition, bound by its contents and estopped from
claiming that its provisions are contrary to their intentions or
understanding. (Jefferson v. Department of Youth Authority
(2002) 28 Cal.4th 299, 303.) Given that there is an express, pre-
treatment agreement and acknowledgement of the Hospital’s
relationship to the Doctors, Steger cannot argue that an implied
contract embraces the same subject but compels a different
result. (See Eisenberg v. Alameda Newspapers, Inc. (1999) 74
Cal.App.4th 1359, 1387.)
Steger’s acknowledgement of the statement in the
Conditions of Admission that the Doctors are not employees or
agents of the Hospital thus defeats his ostensible agency theory
of liability. Because Steger failed to raise a triable issue
regarding the evidence the Hospital presented to demonstrate

29
that the ostensible agency theory did not apply, summary
judgment was properly granted for the Hospital.14

2. The Trial Court Properly Denied Steger’s
Request for a Continuance of the Summary
Judgment Hearing.

In his opposition to the motion, Steger requested a
continuance under section 437c, subdivision (h). However, as the
trial court pointed out, Steger failed to support his request with a
declaration of his counsel, attesting to his need for additional
discovery, describing what he hoped to find, or explaining why in
the 18 months of litigating his case, he had not been able to
obtain the discovery he needed.
“Continuance of a summary judgment hearing is not
mandatory, . . . when no affidavit is submitted or when the
submitted affidavit fails to make the necessary showing under
section 437c, subdivision (h).” (Cooksey v. Alexakis (2004) 123
Cal.App.4th 246, 254; accord, California Auto. Ins. Co. v. Hogan
(2003) 112 Cal.App.4th 1292, 1305–1306 [trial court was not
required to grant plaintiffs a continuance to conduct additional
discovery before ruling on defendant’s summary judgment
motion, where plaintiffs provided no details concerning the
evidence they expected to develop through additional discovery or
why the additional discovery was necessary].) Given the record,
we agree with the trial court’s assessment of the request and thus

14 In light of our conclusion, we do not consider the merits of
the trial court’s basis for granting the summary judgment
motion, namely, that Steger failed to present a triable issue of
fact as to the Doctors’ negligence.

30
conclude that the court did not abuse its discretion in refusing to
continue the hearing.
Likewise, in the supplemental briefing this court permitted
after oral argument, Steger asks for an additional opportunity to
conduct further discovery. However, he has failed to persuade us
that any additional evidence relating to any agency theory exists,
and that he has not had an adequate opportunity to present such
evidence or to conduct discovery on the issue.

C. Steger Has Not Demonstrated Any Other Basis to
Reverse.

Steger has not presented any other reason to reverse the
judgment. First, we observe that Steger’s opening brief is focused
primarily on his contention that the trial court erred in requiring
him to support his opposition to the summary motion with expert
opinion on the existence of ostensible agency. Although Steger
correctly argues that expert evidence is not required to
demonstrate the existence of an agency relationship, his
argument is beside the point. Here, the trial court granted
summary judgment for the Hospital because Steger failed to
present expert evidence on the malpractice standard of care and
causation, not because he failed to present expert opinion on the
existence of ostensible agency.
Second, Steger has not shown reversible error concerning
the denial of his post-judgment motions for a new trial and relief
under section 473, subdivision (b). The post-judgment motions
related solely to Steger’s effort to present Dr. Gazi’s expert
declaration on the issue of the Doctors’ negligence. Neither post-
judgment motion concerned the application of the ostensible

31
agency doctrine that we consider here. Consequently, the court’s
rulings on those motions do not affect the outcome of this appeal.

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on
appeal.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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