Bauer vs. Williams

Initial burden. Defendant has failed to meet his initial burden to show plaintiff’s sole cause of action for professional (chiropractic) negligence has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same]; Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 (Johnson) [professional negligence, elements].)

Defendant’s motion rests on the premise that although defendant performed an “examination” of plaintiff, he never “treated” her and therefore could not have breached any chiropractic standard of care. (See Ntc. of Mtn., p. 2; Mtn. Memo. P&As at pp. 3-4; Def. SSMF Nos. 4-12.)

Defendant’s contentions fail to appreciate the elements to a claim for professional negligence. The elements to a claim for professional negligence include, inter alia, “a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise,” and a breach of that duty. (See Johnson, supra, 143 Cal.App.4th at p. 305.) Thus, where, as here, the complaint alleges all of defendant’s chiropractic care and services to plaintiff, including his “examination,” “care,” and “treatment” of plaintiff on 10/8/20, was negligent (see Compl. ¶¶ 8-10, 13)—the question is whether any of that alleged conduct fell below the requisite standard of care, and not whether defendant may have performed a mere “examination” vs. an actual “treatment.” (See Johnson, supra, 143 Cal.App.4th at p. 305 [elements]; Quintilliani v.

Mannerino (1998) 62 Cal.App.4th 54, 59 (Quintilliani) [the allegations of the complaint define the issues to be considered on a motion for summary judgment and as to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense; “only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact”]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [summary judgment must be denied where moving party does not refute all tenable pleaded theories or bases for liability]; Miles Laboratories, Inc. v.

Superior Court (1982) 133 Cal.App.3d 587, 593 [“A defendant moving for summary judgment has the burden of making a factual showing negating the existence of all causes of action on all theories embodied in the complaint and if he fails to discharge that burden, the motion must be denied”].)

Indeed, defendant admits he provided plaintiff with chiropractic care and services by, among other things, performing an orthopedic-neurological examination “plus” an axial neck compression, axial neck decompression, and shoulder depression. (Def. SSMF No. 6; Williams Decl. ¶ 5; Young Decl. ¶ 6.) These are chiropractic “procedures” that defendant admits he physically “performed” on plaintiff on 10/8/20. (Williams Decl. ¶ 5 [“I performed a standard chiropractic examination, which included ... axial decompressions and shoulder compression with my hands,” and these “procedures” were “performed in accordance with my education, training, and ... chiropractic experience...”]; see Young Decl. ¶ 6 [“Dr.

Williams performed ... an orthopedic-neurological examination with axial neck compression, axial neck decompression, and shoulder depression...”].) The pertinent question is therefore whether defendant negligently performed these procedures. (See See Compl. ¶¶ 8-10, 13; Quintilliani, supra, 62 Cal.App.4th at p. 59.)

Defendant has, in passing, attempted to address this issue by asserting that he fully complied with the requisite standard of care (see, e.g., Young Decl. ¶ 11), but his evidence is insufficient to establish this fact. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-525 (Kelley); Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.)

Specifically, defendant has submitted two declarations in support of his motion: (1) defendant’s own declaration, and (2) the declaration of his expert, David N. Young, D.C., board-certified chiropractic orthopedist.

Defendant, a licensed California chiropractor, declares he performed the subject “axial decompressions and shoulder compression” procedures “in accordance with [his] education, training, and twenty years of chiropractic experience while practicing in Utah and California,” and asserts that “nothing [he] performed ... could biomechanically cause injury.” (Williams Decl. ¶¶ 2, 5, 11.) His declaration, however, fails to set forth any facts as to how he performed these procedures on plaintiff, other than that he used his “hands and fingers.” (Id. ¶ 5.) He also fails to provide any explanation whatsoever as to how “nothing [he] performed ... could biomechanically cause injury.” (See ibid., in passim.)

As for the declaration of Dr. Young, he declares that it is within the standard of care to perform the subject procedures, without addressing whether the manner in which defendant performed them met the standard of care. (See Young Decl. ¶ 6.) Dr. Young then opines—without setting forth any facts, bases, reasoning, or further explanation—that “[t]here is no biomechanical mechanism by which [defendant’s] examination or ortho-neuro testing could cause injury to [plaintiff]” and that defendant “complied fully with and did not violate the chiropractic standard of care.” (Id. ¶¶ 9-10.) He also opines—again without setting forth any facts, bases, reasoning, or explanation—that “[plaintiff’s] symptoms on October 8, 2020[] [were] consistent with pre-existing degenerative disc disease – not trauma.” (Id. ¶ 10.)

These declarations are woefully insufficient to meet defendant’s initial burden of proof. Conclusory expert opinions such as these that fail to set forth the facts or standard upon which they are based have “no evidentiary value” and cannot support a motion for summary judgment. (Kelley v. Trunk, supra, at pp. 524, 525 [summary judgment standard “not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation”]; Garibay, supra, 161 Cal.App.4th at p. 743; Bushling v.

Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 [“an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based”]; Johnson, supra, 143 Cal.App.4th at pp. 306-307 [same].) They are therefore insufficient to show that defendant’s care and treatment (including his “examination procedures”) of plaintiff complied with the requisite standard of care at all times.

Dr. Young’s opinion as to plaintiff’s degenerative disc disease is further defective because he is a chiropractor, not a medical doctor, and nothing shows he has the medical education, training, and experience necessary to provide a competent opinion as to plaintiff’s degenerative disc disease or the medical cause of plaintiff’s medical condition/symptoms. (See Young Decl. ¶ 2, Ex. A [curriculum vitae].) A Doctor of Chiropractic does not authorize the practice of medicine. (Bus. & Prof. Code, § 1000-7; Crees v. California State Bd. of Medical Examiners (1963) 213 Cal.App.2d 195, 211.)

Request for judicial notice. Defendant’s request for judicial notice is GRANTED as to the existence, content, and legal effect of the subject document (ROA No. 117 [Def. RJN, attached 8/3/23 Board letter]), but not the truth of the matters asserted therein. (See Evid. Code, § 452, subd. (c) [court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments”]; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518 [“Official acts include records, reports and orders of administrative agencies.”]; Hogen v.

Valley Hospital (1983) 147 Cal.App.3d 119, 125 [taking judicial notice of “the files of the Board of Medical Quality Assurance in connection with [a] [public] report to that board...”]; Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812, 854 [while the court may take judicial notice of official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice]; Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [same].)

Objections. The court declines to rule on defendant’s objection (ROA No. 156), as it is not material to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

Defendant shall give notice.

2 CLAIRMONT vs. FORD MOTOR COMPANY

2025-01510533 Motion to Dismiss

Defendant Ford Motor Company’s motion to dismiss, or alternatively, to compel initial disclosures, document production, and deposition, and for sanctions, is GRANTED IN PART and DENIED IN PART. (Code Civ. Proc., § 871.26.) The motion is GRANTED as to disclosures, deposition, and monetary sanctions. Plaintiff Frederick Clairmont shall produce the documents and information required by Code Civ. Proc., § 871.26, subds. (f) and (g), to moving party within 10 days. Plaintiff Frederick Clairmont shall also appear for deposition pursuant to Code Civ.

Proc., § 871.26, subd. (c)(1), to take place on 7-16-26 at 10:00 AM, at the offices of counsel for moving party, Evans Fears Schuttert McNulty Mickus, 1 Park Plaza, Suite 500, Irvine, California 92614. The parties may agree in writing to conduct the deposition at a different date, time, and/or location, and/or by remote means rather than in person.

The motion is also GRANTED IN PART as to sanctions. Monetary sanctions are imposed against plaintiff Frederick Clairmont in the amount of $3,000.00, payable to counsel for moving party within 15 business days. (Code Civ. Proc., § 871.26, subds. (j)(1), (j)(2).)

Plaintiff and his counsel are admonished that although the court denied defendant’s motion to dismiss at this stage of the proceedings, a dismissal of the complaint is authorized under Code of Civil Procedure section 871.26, subdivision (j)(3) for a plaintiff’s repeated noncompliance with subdivisions (b), (c) and (d), and the court shall order a plaintiff to pay costs to the manufacturer.

The remainder of the motion is DENIED WITHOUT PREJUDICE.

Moving party shall give notice.