Filed 4/1/22 Prasad v. Mercy Medical Center etc. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
VIRENDRA PRASAD, C093599
Plaintiff and Appellant, (Super. Ct. No.
20CVPO0194257)
v.
MERCY MEDICAL CENTER
REDDING/DIGNITY HEALTH,
Defendant and Respondent.
Plaintiff Virendra Prasad brought this medical negligence action against defendant
Mercy Medical Center Redding/Dignity Health after he suffered traumatic head injuries
from a fall. Plaintiff claims he was harmed as a result of the negligent care rendered by
defendant’s employees. The trial court granted summary judgment in favor of defendant,
finding that plaintiff had failed to establish a triable issue of fact on his medical
negligence claim. This timely appeal followed. We conclude the motion for summary
judgment was properly granted and affirm the resulting judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
In December 2016, plaintiff lived in the town of Weed in Shasta County. He was
57 years old. On the evening of December 23, 2016, he fell at home after consuming a
significant amount of alcohol. His ex-wife and son found him unconscious on the
kitchen floor. He was taken by ambulance to the emergency department of Mercy
Medical Center Mount Shasta and arrived there shortly before midnight.
The emergency room doctor determined that plaintiff was suffering from
confusion, alcohol intoxication, drug abuse, and/or intracranial hemorrhage. He was
struggling to breathe and was intubated. A computed tomography (CT) scan revealed
that he had an intracranial hemorrhage and skull fractures. A CT angiogram of his head
and neck was performed, but there was no evidence of an intracranial aneurysm, stenosis,
or dissection.
Due to the seriousness of his injuries, plaintiff was transferred to Mercy Medical
Center Redding, where he arrived around 3:00 a.m. on December 24. He was non-
responsive and admitted to the intensive care unit (ICU), where a critical care specialist
determined that he was severely obtunded/comatose and was experiencing acute
respiratory failure. The specialist placed an arterial line for monitoring purposes,
including intracranial pressure, and noted that a neurosurgeon would be examining him.
Later that same day, a neurosurgeon performed a right ventriculostomy on plaintiff’s
skull and brain to relieve intracranial pressure. Thereafter, plaintiff’s condition mildly
improved; he was able to intermittingly follow voice commands, although he could not
move.
On December 27, plaintiff was able to open his eyes and consistently look upward
in response to voice commands. On December 28, his ex-wife consented to a procedure
known as a tracheostomy and PEG (percutaneous endoscopic gastrostomy) tube
placement, which involved the insertion of breathing and feeding tubes. However, she
2
withdrew her consent the following day after having second thoughts about prolonging
plaintiff’s life via long-term life support and rehabilitation.1
On December 30, plaintiff’s mental status began to decline. The decline continued
the next day; he was no longer able open his eyes in response to verbal commands.
When plaintiff’s ex-wife and son met with a doctor to discuss his declining mental status
and poor prognosis, they made it clear that plaintiff would not want to live under
conditions in which he was highly dependent upon life support and requested that his
current supportive care be continued, and his code status was changed to DNR (i.e., do
not resuscitate).
During the first week of January 2017, plaintiff’s condition did not materially
change; he remained critically injured and in a coma and was dependent upon mechanical
ventilation to breathe; however, he was able to move his eyes in response to questions
and voice commands. On January 8, plaintiff was able to respond to questions by
moving his eyes and was able to move his head slightly during questioning. On
January 10, he was “spontaneously awake” and responded to voice commands by
blinking his eyes.
On January 15, plaintiff became “much more lucid” and was able to move his toes
in response to voice commands. The next day, he was lucid and able to move his head up
and down and left and right. In response to questioning, he denied experiencing any pain
or anxiety. On January 17, he remained lucid and was able to understand the treatment
options explained to him and affirm that he wanted to proceed with tracheostomy/PEG
placement. On January 19, the tracheostomy/PEG placement procedure was performed
without complication. That same day, plaintiff was stable and transferred to Vibra
1 Plaintiff’s treating physicians initially believed his ex-wife was his wife. However, on
January 16, 2017, they learned that she was actually his ex-wife. Thereafter, plaintiff’s
son became the person on whom the treating physicians relied for decisions about
plaintiff’s medical treatment.
3
Rehabilitation. At some point thereafter, he was removed from life support devices and
discharged from Vibra.
Plaintiff’s medical records indicate that he sustained a traumatic “closed head
injury” and was in a coma for several weeks. He was critically ill with a condition called
“locked-in syndrome” after suffering a hemorrhagic left cerebellar stroke. Locked-in
syndrome is a rare condition caused by damage to an area of the brain stem, which results
in complete paralysis, except for occasional ocular (i.e., eye) movement. It is extremely
rare for a person with the syndrome to recover; typically, the person remains in a
paralyzed state until they pass away.
In January 2020, plaintiff brought suit against defendant. A first amended
complaint was filed in May 2020. It alleged one cause of action for medical negligence,
which was predicated on defendant’s failure to monitor or make any attempt to revive
plaintiff, its decision to change his status to DNR, its misdiagnoses of his recovery, and
its attempt to persuade his family to terminate life support.
In July 2020, defendant filed a motion for summary judgment, arguing that it had
not breached the applicable standard of care and did not cause or contribute to any of
plaintiff’s injuries. In support of its motion, defendant submitted an expert declaration
from John Luce, M.D., who opined that, based on his review of plaintiff’s medical
records, defendant met or exceeded the standard of care in treating plaintiff and there was
no evidence of substandard care. Dr. Luce also opined that, to a reasonable degree of
medical probability (i.e., greater than 50 percent), there was no act or omission on the
part of defendant that caused or contributed to plaintiff’s injuries. Dr. Luce’s curriculum
vitae and plaintiff’s medical records were attached as exhibits to Dr. Luce’s declaration.
Plaintiff opposed the motion. He argued that summary judgment was not
warranted because, although Dr. Luce was “well-qualified as to the standard of care,” he
was not a competent declarant under the summary judgment statute (Code Civ. Proc.,
4
§ 437c, subd. (d)),2 since he had no personal knowledge of plaintiff’s medical care and
simply relied on plaintiff’s medical records in forming his opinions.3 Plaintiff also
argued that Dr. Luce’s declaration was inadmissible under People v. Sanchez (2016) 63
Cal.4th 665, 684 (“If an expert testifies to case-specific out-of-court statements to explain
the bases for his opinion, those statements are necessarily considered by the jury for their
truth, thus rendering them hearsay”). Lastly, plaintiff argued that the “common
knowledge” exception applied, such that expert evidence was not required for the finder
of fact to determine whether defendant breached the standard of care. (See Lattimore v.
Dickey (2015) 239 Cal.App.4th 959, 968 [the standard of care in a medical negligence
case can only be proved by expert evidence, “unless the circumstances are such that the
required conduct is within the layperson’s common knowledge”]; Massey v. Mercy
Medical Center Redding (2009) 180 Cal.App.4th 690, 695 (Massey) [expert evidence is
required to prove that a medical professional did not meet the standard of care and
therefore was negligent, “ ‘except in cases where the negligence is obvious to
[laypersons]’ ”]; id. at pp. 694-695.)
Plaintiff’s theory was that, although he received “excellent treatment and care for
his skull and brain injury,” there was a triable issue of fact as to whether the standard of
care had been met because the evidence showed “there was no revival, no recovery, just
palliative care, and pressure on surrogate family members to terminate [his] life support
so he would die.” In support of his theory, he submitted declarations from his ex-wife
and son, but no other evidence.
2 Further undesignated statutory references are to the Code of Civil Procedure.
3 Section 437c, subdivision (d) provides, in pertinent part: “Supporting and opposing
affidavits or declarations shall be made by a person on personal knowledge, shall set
forth admissible evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavits or declarations.”
5
In October 2020, the trial court granted summary judgment in favor of defendant.4
In doing so, the court rejected plaintiff’s challenges to Dr. Luce’s declaration. The court
ruled that Dr. Luce’s medical opinions were not inadmissible due to a lack of personal
knowledge, explaining that a medical expert can rely on a patient’s medical records in
offering opinions in a medical negligence case. The court further ruled that Dr. Luce’s
declaration was not inadmissible under Sanchez, explaining that medical experts may rely
on hearsay statements in a patient’s medical records in forming their opinions, as long as
a hearsay exception applies or that same information is placed before the court in some
other manner.
As for the merits, the trial court concluded that Dr. Luce’s declaration was
sufficient to shift the burden to plaintiff to establish a triable issue of fact as to whether
the standard of care had been met, and that plaintiff failed to satisfy his burden because
he did not submit any expert evidence. The court rejected plaintiff’s contention that
expert evidence was unnecessary because the common knowledge exception applied, and
explained: “[T]his situation does not present obvious conduct in which a layman can
point to as negligent. The proper diagnosis, assessment, treatment, or rendering of a
treatment plan for a serious brain injury are not within the common knowledge of a
layperson.” The court further explained: “While it appears plaintiff contends that the
[d]efendant[’s] medical professionals were . . . mistaken as to [his] chances of survival,
[he] has failed to present any evidence that defendant failed to meet the standard of care
related to the medical care provided at defendant’s hospital . . . .” Finally, the court
found that, even if plaintiff had shown a triable issue of fact as to whether the standard of
care had been met, he failed to show the existence of a triable issue of fact as to causation
4 None of the trial court’s evidentiary rulings with regard to the declarations submitted
by plaintiff are challenged on appeal.
6
and noted that the evidence submitted by plaintiff was “wholly inadequate” to show he
suffered any harm from defendant’s alleged breach of the standard of care.
In January 2021, plaintiff filed what we shall deem a motion for reconsideration,
asking the trial court to set aside its summary judgment order.5 Plaintiff argued that such
relief was warranted because defendant failed to make Dr. Luce available for deposition
prior to moving for summary judgment in violation of the expert witness discovery
statutes (§ 2034.210 et seq.). Plaintiff insisted that it was improper for defendant to rely
on Dr. Luce’s declaration under these circumstances. The appellate record does not
disclose whether the trial court ruled on the motion, but judgment was entered in favor of
defendant the day after the motion was filed.
Plaintiff timely filed a notice of appeal. The case was fully briefed on
September 21, 2021. On November 16, 2021, we sent an oral argument waiver notice to
the parties. Plaintiff requested argument, and after a continuance of argument granted to
plaintiff, argument was heard on March 22, 2022.
DISCUSSION
I
Standard of Review
“Because this case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was before the trial court when
it ruled on that motion. [Citation.] ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing papers except that to
which objections were made and sustained.” ’ [Citation.] We liberally construe the
5 Although the document plaintiff filed was not designated as a motion for
reconsideration, we treat it as such based on the relief requested. (See Powell v. County
of Orange (2011) 197 Cal.App.4th 1573, 1577 [name of a motion is not controlling, and a
motion asking the trial court to decide the same matter previously ruled on is a motion for
reconsideration]; J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018) 29
Cal.App.5th 1142, 1171 [same].)
7
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037.) “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.)
A defendant moving for summary judgment has the burden of showing that a
cause of action has no merit by demonstrating one or more elements of the cause of
action cannot be established or that a complete defense to that cause of action exists.
(§ 437c, subd. (p)(2).) If the defendant successfully meets this burden, the plaintiff then
has the burden of setting forth specific facts showing the existence of one or more triable
issues of material fact. (Ibid.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
[plaintiff] . . . in accordance with the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) The trial court shall grant the
defendant’s summary judgment motion if there is no triable issue as to any material fact
and that party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
II
Motion for Reconsideration
Plaintiff contends reversal is required because defendant failed to make Dr. Luce
available for deposition prior to moving for summary judgment in violation of the expert
witness discovery statutes (§ 2034.210 et seq.). Because this argument was raised for the
first time in plaintiff’s motion for reconsideration, we construe the appellate claim to
contend the trial court erred in failing to grant the motion. We disagree.
When, as here, a party files a motion for reconsideration of a ruling on a summary
judgment motion, the trial court may not grant the motion unless the requirements of
section 1008 have been satisfied. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)
Section 1008, subdivision (a), provides, in pertinent part: “[A]ny party affected by [a
8
court] order may, within 10 days after service upon the party of written notice of entry of
the order and based upon new or different facts, circumstances, or law, make application
to the same judge or court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order. The party making the application shall state by
affidavit what application was made before, when and to what judge, what order or
decisions were made, and what new or different facts, circumstances, or law are claimed
to be shown.” A party seeking reconsideration also must satisfactorily explain the failure
to present the new or different information earlier. (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) If these
prerequisites are not satisfied, a trial court acts in excess of its jurisdiction in granting a
motion for reconsideration. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690-691;
G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 622.)
We see no error in the trial court’s failure to grant reconsideration. Plaintiff’s
motion for reconsideration was not supported by an affidavit or declaration, was filed
77 days after summary judgment was granted, and does not articulate any new or
different facts, circumstances, or law for the trial court’s consideration. Indeed, the facts
and circumstances giving rise to the legal argument raised in plaintiff’s motion--the
expert’s availability for deposition--were not new or different because these facts were
known to plaintiff before he filed his opposition to the motion for summary judgment.
(In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [“facts of which the party
seeking reconsideration was aware at the time of the original ruling are not ‘new or
different’ ”].) In his September 2020 settlement conference statement, which was filed
several weeks before his opposition to the motion for summary judgment, plaintiff stated:
“[T]he motion for summary judgment will be opposed. Among other reasons, the
designation of experts under CCP §§2034.210-2034.310 applies to the Declaration of
John M. Luce, M.D.[] and his declaration is objected to pursuant to CCP 437c(c) and
cannot be used to support the summary judgment motion.” Thus, it is readily apparent
9
from the record that plaintiff could have raised the argument he made in his motion for
reconsideration earlier. He offered no explanation for his failure to do so. Under these
circumstances, the trial court properly refused to grant reconsideration. (See Cox v.
Bonni (2018) 30 Cal.App.5th 287, 312 [“A trial court may not grant a party’s motion for
reconsideration that does not comply with section 1008”].)
In any event, the substantive legal argument made by plaintiff in his motion for
reconsideration is utterly without merit. Plaintiff has not cited, and we are not aware of,
any authority supporting the conclusion that defendant was required to make Dr. Luce
available for deposition prior to moving for summary judgment. Due to the timing
requirements of the expert witness discovery statutes and the summary judgment statute,
a summary judgment motion will normally be heard and determined before the exchange
of expert witness information. (See Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 539-540.) Ordinarily, expert depositions are not taken until after the exchange of
expert witness information (§§ 2034.210, 2034.410), which did not take place in this case
before defendant moved for summary judgment.6 Although “where a party presents
evidence that raises a significant question relating to the foundation of an expert’s
opinion filed in support of or in opposition to a motion for summary judgment or
summary adjudication, a deposition limited to that subject should be allowed” (St. Mary
Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1534), plaintiff did not
raise any significant or legitimate questions concerning the foundation of Dr. Luce’s
medical opinions in the trial court. To the contrary, plaintiff conceded that Dr. Luce was
“well qualified” to render an opinion as to whether the standard of care had been met, and
that Dr. Luce had relied on his medical records in rendering an opinion on that issue.
Further, the record does not reflect that plaintiff requested a continuance for the purpose
6 It is not disputed that the deadline for the exchange of expert witness information was
October 19, 2020, which was the same day as the hearing on defendant’s motion for
summary judgment.
10
of deposing Dr. Luce. (See § 437c, subd. (h) [authorizing a continuance of summary
judgment proceedings to allow discovery to be conducted].) Instead, plaintiff objected to
Dr. Luce’s declaration on the ground that it was improper for him to offer expert medical
opinions based solely on his review of medical records, arguing that Dr. Luce’s
declaration was inadmissible because he had no personal knowledge of the underlying
facts on which he based his medical opinions (i.e., personal knowledge of the medical
care plaintiff received), and because he improperly relied on hearsay statements in
forming his opinions. The trial court properly rejected these arguments.
To provide an expert opinion, a person must have sufficient “special knowledge,
skill, experience, training, or education.” (Evid. Code, § 720, subd. (a).) “An expert may
rely on otherwise inadmissible hearsay evidence provided the evidence is reliable and of
the type that experts in the field reasonably rely upon in forming their opinions.”
(People v. Yuksel (2012) 207 Cal.App.4th 850, 856.) Medical records, although hearsay,
can be used as a basis for an expert medical opinion in a medical negligence case.
(Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743; Wicks v. Antelope Valley
Healthcare Dist. (2020) 49 Cal.App.5th 866, 876 [medical records “are the type of
records on which medical experts may and do rely in order to give expert testimony in a
medical malpractice case”].) In Garibay, the court reversed a summary judgment order
entered in favor of the defendant doctor in a medical malpractice action, finding the
expert declaration in support of the doctor’s motion lacked foundation. Defendant’s
medical expert had not demonstrated personal knowledge of the underlying facts on
which he based his opinion because his declaration “attempted to testify to facts derived
from medical and hospital records which were not properly before the court.” (Garibay,
at p. 743.) The moving papers did not include authenticated copies of the medical
records on which the expert based his opinion. (Ibid.) Here, by contrast, the medical
records Dr. Luce reviewed and on which he based his medical opinions were
11
authenticated and properly before the court. Therefore, his declaration was not
inadmissible on the grounds raised by plaintiff. (See Wicks, at p. 876.)
III
Medical Negligence
Plaintiff contends the trial court erred in determining that his medical negligence
cause of action could not be established without expert medical evidence. He argues that
summary judgment should have been denied because the common knowledge exception
applies, since defendant’s negligence concerning plaintiff’s medical treatment falls within
the common knowledge of laypersons. We disagree.
“Generally, ‘negligence’ is the failure to exercise the care a reasonable person
would exercise under the circumstances. [Citation.] Medical negligence is one type of
negligence, to which general negligence principles apply.” (Massey, supra, 180
Cal.App.4th at p. 694.) The elements of a cause of action for medical negligence 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.’ ” (Lattimore v. Dickey, supra, 239 Cal.App.4th at p. 968.)
“ ‘Ordinarily, the standard of care required of a doctor, and whether he exercised
such care, can be established only by the testimony of experts in the field.’ [Citation.]
‘But to that rule there is an exception that is as well settled as the rule itself, and that is
where “negligence on the part of a doctor is demonstrated by facts which can be
evaluated by resort to common knowledge, expert testimony is not required since
scientific enlightenment is not essential for the determination of an obvious fact.” ’ ”
(Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6.) “The ‘common knowledge’ exception is
principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa
loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and
observation that the consequences of professional treatment were not such as ordinarily
12
would have followed if due care had been exercised.’ ” (Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.)
The classic example of a case that falls within the common knowledge exception
is one in which a foreign object has been left in the patient’s body. (See, e.g., Ales v.
Ryan (1936) 8 Cal.2d 82, 95-99 [sponge left in abdominal cavity]; Leonard v.
Watsonville Community Hospital (1956) 47 Cal.2d 509, 514 [clamp left in abdomen].)
Other examples include cases in which the patient “received an injury to a part of the
body unrelated to the part being treated,” such as the amputation of the wrong limb or a
shoulder injury during an appendectomy. (Hurn v. Woods (1982) 132 Cal.App.3d 896,
901 [collecting cases]; see Ewing v. Northridge Hospital Medical Center (2004) 120
Cal.App.4th 1289, 1303 [collecting cases].)
“California decisions state that the common knowledge exception applies if the
medical facts are commonly susceptible of comprehension by a lay juror—that is, if the
jury is capable of appreciating and evaluating the significance of a particular medical
event. [Citations.] As our high court has succinctly put it: ‘Technical knowledge is not
requisite to conclude that complications from . . . a surgical clamp left in the patient’s
body . . . indicate negligence. Common sense is enough to make that evaluation.’ ”
(Gannon v. Elliot, supra, 19 Cal.App.4th at p. 7.)
We conclude the trial court correctly determined that the common knowledge
exception does not apply. The record reflects that plaintiff suffered traumatic head
injuries from a fall and was in a coma for several weeks in defendant’s ICU. He was
critically ill with locked-in syndrome, a rare condition caused by damage to an area of the
brain stem, which results in complete paralysis, except for occasional eye movement. In
his declaration, Dr. Luce stated that he was familiar with the syndrome and had treated it
on multiple occasions. He explained that a person suffering from the syndrome is
completely reliant on caregivers and artificial support to breathe, and that a person with
the syndrome is typically intubated, placed on a mechanical ventilator, given salt
13
solutions and Mannitol, and directed to the trauma team and a neurosurgeon. He further
explained that because it is extremely rare for people with the syndrome to recover, they
typically, through eye movements or their family, decide whether to continue or remove
life support. He noted that people suffering from the syndrome usually remain in a
paralyzed state until they die.
We find no merit whatsoever in plaintiff’s contention that expert evidence was not
required in this case because jurors could rely on their own common knowledge to
determine whether defendant met the standard of care. Without citation to any authority
involving similar facts, plaintiff asserts that this case falls within the common knowledge
exception because defendant’s negligence is demonstrated by its failure to undertake any
“revival measures” for his comatose condition and its placement of him in “palliative-
only care with Do Not Resuscitate (DNR) status.” We disagree. This case is clearly not
the type of case where the exception applies. It does not involve a foreign object left in a
patient’s body or any other similarly obvious negligent conduct. The medical treatment
plaintiff received for his traumatic head injuries and whether it complied with the
standard of care is not within the common knowledge of any layperson. As a
consequence, once defendant submitted an expert declaration from Dr. Luce, in which he
opined that defendant’s conduct did not fall below the standard of care, plaintiff was
obligated to submit conflicting expert evidence if he wished to establish a triable issue of
fact. Generally, whether a doctor was negligent is “ ‘ “a matter peculiarly within the
knowledge of experts” ’ ” and can only be proved by expert evidence. (Flowers v.
Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001; see Massey,
supra, 180 Cal.App.4th at pp. 694-695.) Accordingly, because plaintiff did not submit
any expert evidence from which the trier of fact could conclude that the standard of care
had not been met, we will affirm the trial court’s order and subsequent entry of judgment.
(Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 [when a doctor moves for summary
judgment and supports his motion with an expert declaration that his conduct met the
14
standard of care, he is entitled to summary judgment unless the plaintiff comes forward
with conflicting expert evidence].)7
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Hoch, J.
7 Having concluded that plaintiff failed to establish a triable issue of fact as to
defendant’s compliance with the standard of care, we need not and do not address
defendant’s causation argument.
15