Nguyen v. Yee CA2/3

Filed 8/31/23 Nguyen v. Yee CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THUY HUYNH NHAT NGUYEN, B319542

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV38798)

HENRY C. YEE et al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of Los
Angeles County, Jill Feeney, Judge. Reversed.
Law Offices of London & Le, Victoria Le and Maria H.
Skinner for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Nathan J. Novak; Law
+ Brandmeyer, Kent T. Brandmeyer and Amanda Mannshahia
for Defendants and Respondents Henry C. Yee and Long Life
Cardiac Center, Inc.
Fraser Watson & Croutch, David M. Wright and Daniel K.
Dik for Defendant and Respondent Xiao Liu.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
 Plaintiff and appellant Thuy Huynh Nhat Nguyen sued the
Long Life Cardiac Center, Inc. (Long Life Center), its chief
executive officer Dr. Henry Yee, and nurse technician Xiao Liu
for medical negligence after she fell and broke her arm during a
treadmill stress test. The Long Life Center and Dr. Yee jointly
moved for summary judgment, supported by an expert
declaration that the defendants had met the applicable standard
of care for performing a stress test and for the care Dr. Yee
provided after the fall, and that defendants did not cause
plaintiff’s injuries. Although the Long Life Center and Dr. Yee
argued that Liu was not negligent in administering the stress
test, Liu did not join the motion or move separately for summary
judgment. The court granted the motion for summary judgment,
and ordered judgment be entered in favor of all three defendants.
For the reasons set forth below, we conclude the trial court
erred when it granted summary judgment to Liu, because she1
did not move for summary judgment or comply with the
requirements of Code of Civil Procedure section 437c. We
additionally conclude that the expert declaration offered by
defendants was conclusory and based on disputed facts which
made it insufficient to establish the absence of a material fact
issue as to breach of duty and causation. Accordingly, we reverse
the judgments as to all defendants.

1 The brief filed by Dr. Yee and the Long Life Center refers

to Liu as male, but during argument counsel for Liu stated that
he believes Liu is female. We will defer to Liu’s counsel and refer
to Liu accordingly.

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 FACTUAL AND PROCEDURAL BACKGROUND
A. The treadmill exercise stress test
On March 6, 2019, plaintiff went to the Long Life Center
for a diagnostic treadmill test. Plaintiff had been referred by her
primary care physician after she “complained of sharp chest pain”
“off and on at rest and also during walking” and “dyspnea and
palpitation during walking.” Before starting, the nurse
technician, Liu, explained through an interpreter that the test
involved walking on the treadmill and obtained plaintiff’s
permission to begin the test. The interpreter left the room,
plaintiff gave her consent for the test to start, and Liu
communicated to a supervising physician, Dr. Htay, that the test
was beginning. Shortly after Liu started the treadmill, plaintiff
fell.
According to a handwritten “incident report” in plaintiff’s
medical records, when plaintiff fell Liu was able to catch her and
“support her body.” According to plaintiff, she was walking on
the treadmill when she started to fall. (AA 521) She tried to grab
the handrails but lost her grip. Her chest hit the treadmill, and
her “body rolled into the back of the treadmill” and then
“slam[med] into the wall.” Plaintiff states that no one did
anything to help her until she stood up on her own. Dr. Yee was
informed of the incident, examined plaintiff, offered her Tylenol
for pain, and arranged for an ambulance to transfer plaintiff to a
nearby hospital. Plaintiff was diagnosed with a fractured
humerus, the large bone in her upper right arm.

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B. Plaintiff’s complaint and defendants’ motion for
summary judgment
On October 8, 2020, plaintiff filed a complaint alleging a
single cause of action for “Professional Negligence” against Dr.
Yee, the Long Life Center and “doe” defendants who were
involved in her care. Plaintiff alleged that “the employee
conducting the [treadmill] test increased the speed of the
treadmill too quickly for [plaintiff] to handle, causing her to
stumble and fall.” As a result, plaintiff alleged that she suffered
“serious physical and emotional damage including but not limited
to a right shoulder fracture and other injuries.”
On September 3, 2021, Dr. Yee and the Long Life Center
filed a motion for summary judgment, arguing that the evidence
“conclusively establish[es]” that “both Dr. Yee and the employees
at Long Life Cardiac Center complied with the applicable
standard of care at all times,” and that “the respective care
provided to Plaintiff by Dr. Yee and the employees at Long Life
Cardiac Center were not substantial factors to Plaintiff’s claimed
injuries.”2 In support of the motion, defendants offered, inter
alia, the declaration of Dr. Michael Chaikin, a board-certified
cardiologist retained by defendants. Dr. Chaikin’s opinion was
based upon his education, training, experience and review of the
complaint, plaintiff’s medical records at the Long Life Center and
her subsequent hospital room stay, and plaintiff’s deposition
transcript. Dr. Chaikin opined that “[a]ll employees of Long Life
Cardiac Center, including Nurse/technician Xiao Liu, complied
with the applicable standard of care” during plaintiff’s treatment.

2 In the alternative, Dr. Yee and the Long Life Center

separately moved for summary adjudication of plaintiff’s cause of
action for medical malpractice.

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Specifically, Dr. Chaikin explained that by reviewing the stress
test readings, he determined that the test started at
approximately 12:37:16. At the that time, he opined, the
treadmill “would be moving at 1.7 miles per hour at a 10% grade
… the equivalent of a very slow walking pace.” The test records
indicated that the treadmill stopped less than a minute after the
test started. Dr. Chaikin stated the “incident report” indicated
that Liu, “who was administering the treadmill test, was able to
grab Plaintiff and ease her body to the ground.” He opined that
the “records indicate that Nurse/technician Xiao Liu was
appropriately standing next to Plaintiff during the treadmill test
and she was able to ease Plaintiff to the ground.” As to the issue
of causation, Chaikin opined that “[a]t the time of Plaintiff’s fall,
the treadmill was moving at a very slow pace for less than a
minute. Nurse/technician Xiao Liu was properly supervising
Plaintiff and there was no reason to suspect that Plaintiff would
stop walking and fall to the ground.” Dr. Chaikin thus concluded
that “to a reasonable degree of medical probability, no employee
of Long Life Cardiac Center, including Nurse/technician Xiao Liu,
caused or contributed to Plaintiff’s injuries.” Dr. Chaikin
separately addressed the standard of care and causation as to Dr.
Yee’s treatment of plaintiff after she fell, opining that it was
within the standard of care and did not cause or contribute to
plaintiff’s injury.
Defendants’ separate statement of undisputed facts in
support of their motion closely tracked the language of Dr.
Chaikin’s declaration. For example, defendants’ undisputed fact
No. 11 states that “All employees of Long Life Cardiac Center,
including Nurse/Technician Xiao Liu, complied with the
applicable standard of care during Plaintiff Thuy Huynh Nhat

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Nguyen’s care and treatment.” Undisputed fact No. 13 states
that “The treadmill was stopped by 12:37:38 and Plaintiff fell less
than a minute after the treadmill started to move. The records
indicate that Nurse/Technician Xiao Liu was appropriately
standing next to Plaintiff during the treadmill test and she was
able to ease Plaintiff to the ground.” Undisputed fact No. 14
states that “To a reasonable degree of medical probability, no
employee of Long Life Cardiac Center, including
Nurse/Technician Xiao Liu, caused or contributed to Plaintiff’s
injuries. At the time of Plaintiff’s fall, the treadmill was moving
at a very slow pace for less than a minute. Nurse/Technician
Xiao Liu was properly supervising Plaintiff and there was no
reason to suspect that Plaintiff would stop walking and fall to the
ground.” Finally, undisputed fact No. 15 states that “Henry Yee,
M.D. complied with the applicable standard of care since his only
involvement came after he was notified that Plaintiff had fallen.
It was appropriate for Dr. Yee to evaluate Plaintiff post-fall, offer
Tylenol, and call an ambulance to take Plaintiff to the emergency
room for further workup.”
Plaintiff opposed the motion arguing the existence of
triable issues of fact regarding both standard of care and
causation. Plaintiff challenged Dr. Chaikin’s opinion regarding
causation, arguing that the standard of care required a physician
to be present during the treadmill test, and that Dr. Chaikin’s
opinion that no defendant caused or contributed to plaintiff’s
injury failed to account for plaintiff’s testimony that Liu did
nothing to assist her when she fell.
While the motion was pending, the court granted plaintiff
leave to amend her complaint to add Liu as a named party, as
well as new allegations regarding Liu’s conduct during the

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examination. These amendments (1) made clear that Liu, rather
than Dr Yee, administered the treadmill test to plaintiff;
(2) added a new allegation that plaintiff was not permitted to
stop the treadmill herself; and (3) added that no physician was
present when the test started.
With the court’s permission, both sides filed supplemental
briefs addressing the amendments to plaintiff’s complaint. As
relevant to this appeal, plaintiff argued there were disputed
issues of material fact including whether Liu helped plaintiff
when she fell. Plaintiff also argued for the first time that she was
excused from presenting an expert declaration to controvert Dr.
Chaikin’s opinion that the standard of care was met, because
under the res ipsa loquitur doctrine a lay trier of fact could decide
whether defendants should have expected that someone with
plaintiff’s symptoms was at risk of falling and injuring herself
during a treadmill test.
C. The trial court’s ruling on the motion
After a hearing, the trial court granted defendants’ motion.
The court referenced the general rule that “[a]n uncontradicted
expert declaration is conclusive proof the health care provider
met the prevailing standard of care.” Citing Dr. Chaikin’s
declaration, the court found that defendants had met their initial
burden of showing that defendants’ conduct was within the
standard of care, and therefore that “[d]efendants . . . met their
initial burden negating breach.” The court rejected plaintiff’s
arguments that Dr. Chaikin lacked expertise in treadmill
operation, noting that the argument went to the weight afforded
Dr. Chaikin’s declaration. The court also rejected plaintiff’s
argument that her injuries fell within the res ipsa loquitur
doctrine, finding that the cause of plaintiff’s injury was not a

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matter of “common knowledge” equivalent to (for example) a
surgical implement left in a patient’s body, which could only be
caused by a lack of due care.
Regarding disputed issues of fact raised by plaintiff, the
court found that “Plaintiff’s attempts to create a triable issue of
material fact are unavailing.” The court addressed the issue of
whether Liu “helped ease Plaintiff to the ground once she started
falling” and concluded that “any discrepancy in this regard is not
a material issue of fact. Plaintiff has not provided an expert
declaration indicating that the standard of care would have
required defendant Xiao Liu or anybody else to catch Plaintiff if
she fell.”
The court concluded that “Plaintiff has neither invalidated
Defendants’ expert evidence nor negated her need to provide
conflicting expert evidence.” The court accordingly ruled that Dr.
Chaikin’s uncontroverted declaration was dispositive as to Dr.
Yee and Liu meeting the standard of care. The court also
accepted Dr. Chaikin’s opinion that neither Dr. Yee nor Liu did
anything to cause or contribute to plaintiff’s injury. The court
granted summary judgment in favor of all three defendants and
ordered counsel for the moving party to prepare a proposed
judgment. Plaintiff timely appealed.3

3 In its January 4, 2022 minute order, the court stated that

the “Summary Judgment Motion of Defendants Henry C. Yee,
Long Life Cardiac Center, Inc., and Xiao Liu is granted” and
ordered counsel for the moving parties to submit a proposed
judgment. The record contains only a judgment dated January
24, 2022, in favor of Liu. A review of the docket reveals no formal
judgment was entered as to Dr. Yee or the Long Life Center.
This appears to be through inadvertence, since on

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 DISCUSSION
A. Standard of review of a summary judgment
Summary judgment is appropriate if there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) “ ‘ “ ‘ “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 evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” ’ ”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) On
appeal, we “ ‘must assume the role of the trial court and

January 14, 2022, plaintiff filed objections to a proposed
judgment in favor of Dr. Yee and the Long Life Center, and the
court issued a minute order on February 3, 2022, stating that the
court “orders judgment entered” in favor of Dr. Yee, the Long Life
Center and Liu. The general rule is that an order granting
summary judgment is not itself appealable. (Garcia v. Hejmadi
(1997) 58 Cal.App.4th 674, 680.) Here, however, the parties have
briefed the appeal, and no one has argued that the appeal is
premature. Thus, “[i]n the interests of justice and to avoid delay,
we construe the order granting summary judgment as
incorporating an appealable judgment, and the notice of appeal
as appealing from such judgment. [Citations.]” (Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) We
construe the minute order dated February 3, 2022, which is the
order from which plaintiff appeals, as “incorporating an
appealable judgment.” So construed, we have jurisdiction to
review both the judgment (Code of Civ. Proc., section 904.1,
subdivision (a)(1)), and the order granting summary judgment
(Code of Civ. Proc., section 906).

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redetermine the merits of the motion’ using the same standards
required below.” (Hernandez v. KWPH Enterprises (2004) 116
Cal.App.4th 170, 175.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853.) If the defendant satisfies this initial burden, the
burden shifts to the plaintiff to present evidence demonstrating
there is a triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850.)
B. The trial court erred when it granted summary
judgment to a nonmoving party
Plaintiff argues that that the trial court erred when it
granted summary judgment in favor of Liu, who did not move for
summary judgment or join the motion filed by Dr. Yee and the
Long Life Center. We agree.
“The trial court cannot grant summary judgment, except to
a party moving for such relief and complying with all of the
requirements of section 437c.” (Sierra Craft, Inc. v. Magnum
Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1254 (Sierra Craft);
accord, Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108
[“case law makes clear that state trial courts do not have the
power to enter summary judgment sua sponte”].) Thus, the trial
court lacked the power to grant summary judgment to Liu, a
party who had not filed or joined in a motion “complying with all
of the requirements of section 437c.” (Sierra Craft, at p. 1254.)
Liu suggests any error was harmless, because “[p]laintiff
had full opportunity to know about, address and oppose [the

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summary judgment motion] as to Xiao Liu, and simply did so
ineffectively.” The law is clear, however, that section 473c
requires technical compliance. “Any arbitrary disregard of the
statutory commands in order to bring about a particular outcome
raises procedural due process concerns.” (Brantley v. Pisaro
(1996) 42 Cal.App.4th 1591, 1607.)4
C. The Court erred when it found that defendants
met their burden to show they did not breach a
duty of care
“ ‘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.’ [Citation.]” (Lattimore v. Dickey (2015) 239
Cal.App.4th 959, 968.) “ ‘ “When a defendant moves for summary
judgment and supports his motion with expert declarations that
his conduct fell within the community standard of care, he is
entitled to summary judgment unless the plaintiff comes forward
with conflicting expert evidence.” ’ [Citation.]” (Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 123 (Powell).) Plaintiff
argues that the trial court erred when it found that defendants

4 Indeed, Liu cites no case to the contrary. Rather, the
cases cited by Liu–Juge v. County of Sacramento (1993) 12
Cal.App.4th 59; Marlton Recovery Partners, LLC v. County of Los
Angeles (2015) 242 Cal.App.4th 510; Ross v. Roberts (2013) 222
Cal.App.4th 677, and Bacon v. Southern Cal. Edison Co. (1997)
53 Cal.App.4th 854–discuss the trial court’s power to grant
summary judgment to the moving party based on an issue not
specifically raised by the moving party in its motion papers.

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met their initial burden of production to show that they did not
breach a duty of care. We agree.
The trial court found that Dr. Chaikin’s uncontroverted
declaration established that defendants’ conduct was within the
standard of care and that defendants had met their initial burden
of negating breach. Dr. Chaikin opined that “[a]ll employees of
Long Life Cardiac Center, including Nurse/technician Xiao Liu,
complied with the applicable standard of care during Plaintiff
Thuy Huynh Nguyen’s care and treatment.” According to Dr.
Chaikin, Liu was “appropriately standing next to Plaintiff during
the treadmill test and [he] was able to ease Plaintiff to the
ground.” He therefore concluded that Liu was “properly
supervising” plaintiff during the treadmill test.
However, the mere fact that a “defendant doctor provides
an unopposed declaration by an expert does not necessarily mean
the court should grant summary judgment.” (Powell, supra,151
Cal.App.4th at p. 123.) “[T]he expert opinion may not be based
on assumptions of fact that are without evidentiary support or
based on factors that are speculative or conjectural, for then the
opinion has no evidentiary value and does not assist the trier of
fact.” (Bushling v. Fremont Medical Center (2004) 117
Cal.App.4th 493, 510.) Additionally, “ ‘an opinion unsupported by
reasons or explanations does not establish the absence of a
material fact issue for trial, as required for summary judgment[,]’
and ‘an expert opinion is worth no more than the reasons upon
which it rests.’ ” (Powell, at p. 124.)
Dr. Chaikin’s opinion that Liu was properly supervising
plaintiff was insufficient because it rested on disputed material
facts. Dr. Chaikin relied on the “incident report” to determine
that Liu caught plaintiff and eased her fall. Thus, he concluded

12
that Liu was “properly supervising” plaintiff during the test and,
more importantly, that Liu’s conduct met the standard of care.
According to plaintiff, however, no one caught her when she fell,
her chest hit the moving treadmill, and she was propelled into
the wall. She stated that no one helped her until she stood up by
herself. The discrepancy between the incident report and
plaintiff’s testimony is not one that Dr. Chaikin could resolve
simply by adopting defendants’ version of events in the incident
report as the basis for his opinion that Liu’s conduct met the
standard of care. There was no foundation for Dr. Chaikin to
opine that Liu was “properly supervising” plaintiff or that she
broke plaintiff’s fall, which are the only facts supporting his
opinion that Liu met the standard of care.
The trial court disregarded this factual dispute as
immaterial because plaintiff failed to submit “an expert
declaration indicating that the standard of care would have
required defendant Xiao Liu or anybody else to catch Plaintiff if
she fell.” In so doing, the trial court reversed the parties’
statutory burdens. Because Dr. Chaikin’s opinion that Liu’s
conduct fell within the standard of care was based on material
facts that are in dispute, plaintiff was under no obligation to
come forward with an expert declaration to controvert Dr.
Chaikin’s opinion that the standard of care was met.5

5 It may ultimately be the case that defendants will be able

to present expert testimony that Liu met the standard of care
regardless of whether she caught plaintiff when she fell. For
purposes of this appeal, however, no such opinion was presented
to the trial court in support of defendants’ motion for summary
judgment.

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 Under these circumstances, the general rule that we credit
an uncontradicted expert declaration that the standard of care
was met is inapplicable. In essence, Dr. Chaikin’s declaration
has the same effect as a hypothetical question posed at trial: in
order for his opinion to have any weight, the trier of fact must
first determine which version of events it believes. “[A]n expert’s
opinion that something could be true if certain assumed facts are
true, without any foundation for concluding those assumed facts
exist in the case before the jury, does not provide assistance to
the jury because the jury is charged with determining what
occurred in the case before it, not hypothetical possibilities.”
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117 (Jennings).)
D. Defendants did not negate causation
Even if plaintiff established a triable issue of fact as to the
issue of breach of duty, summary judgment for defendants would
nonetheless be proper if they met their burden to establish the
absence of causation. “ ‘Like breach of duty, causation also is
ordinarily a question of fact which cannot be resolved by
summary judgment. The issue of causation may be decided as a
question of law only if, under undisputed facts, there is no room
for a reasonable difference of opinion.’ ” (Lawrence v. La Jolla
Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33.) For
purposes of a defendant’s motion for summary judgment, a prima
facie showing is evidence that would require a reasonable trier of
fact not to find any underlying material fact more likely than not.
(Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San
Jose (2009) 174 Cal.App.4th 339, 353.)
Dr. Chaikin opined that “to a reasonable degree of medical
probability, no employee of Long Life Cardiac Center, including

14
Nurse/Technician Xiao Liu, caused or contributed to Plaintiff’s
injuries.” Dr. Chaikin based his opinion on the conclusion that:
“Nurse/technician Xiao Liu was properly supervising plaintiff and
there was no reason to suspect that Plaintiff would stop walking
and fall to the ground.” Dr. Chaikin’s opinion regarding
causation, like his opinion on standard of care, necessarily
incorporated Liu’s version of events to the exclusion of plaintiff’s.
His assertion that there is no causation because Liu was
“properly” supervising plaintiff during the treadmill test has no
probative value if Liu was not, in fact, “properly” supervising
plaintiff. (Jennings, supra, 114 Cal.App.4th at p. 1117.) Nor
does he provide any explanation for his conclusion that there was
no reason to suspect that plaintiff would “stop walking and fall to
the ground.”6 Dr. Chaikin’s “opinion unsupported by reasons or
explanations does not establish the absence of a material fact
issue for trial.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)7

6 In fact, the record indicates that plaintiff had come to the

clinic complaining of chest pain and dyspenia when walking,
which suggests that plaintiff might have trouble performing the
treadmill test.

7 Because we conclude that defendants’ expert declaration

was insufficient to establish the absence of a material fact issue
as to breach of duty and causation, we do not address plaintiff’s
res ipsa loquitur argument.

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 DISPOSITION
The judgments in favor of Dr. Yee, the Long Life Center,
and Xiao Liu are reversed and the matter is remanded for further
proceedings consistent with this opinion. Plaintiff is awarded her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

HEIDEL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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