Motion for Summary Judgment
motion with an expert declaration that the defendant’s conduct fel l within the community standard of care, or did not cause or contribute to the injury, the defendant is entitled to summary judgment unles s the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985; Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781-782.)
Here, Patel has presented expert opinion provided by Dr. Gregory Hammer. (ROA 168.) Dr. Hammer therein opines that Patel acted within the standard of care in providing an epidural to Plaintiff’s mother, and during his involvement in the resuscitation efforts provided t o Plaintiff after delivery, and that to a reasonable medical probability, no negligent act or omission on the part of Dr. Patel led to Plaintiff’s injuries.
(Hammer Decl. ¶¶ 25-35.) The burden thus shifts to Plaintiff to show a deviation from the standard of care and causation as to Dr. Patel. Plaintiff has not met that burden here, as Plaintiff has offered no expert opinion to contradict the Hammer Decl. as presented with the Motion.
Dr. Patel has also presented evidence to show that the Good Samaritan statutes at B&P Code §§2395 and 2396 squarely apply to him here, with regard to his efforts to resuscitate Plaintiff after Plaintiff’s delivery. (UF 2, 3, 6-16.) Plaintiff has failed to dispute that this is so.
Defendants’ Motion for Summary Judgment, as to Dr. Patel, is therefore GRANTED.
Counsel for Defendant Patel is to give notice of this ruling.
15. Garcia v. Westcoast Tree Service, Inc. 22-1240507 Before the Court is defendant Jorge Juarez’s motion for summary judgment on the complaint of Nemesio Garcia. For the reasons set forth below, the motion is DENIED.
Defendants’ request for judicial notice is GRANTED. (Evid. Code § 452
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To establish a complete defense on a summary judgment motion, defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Thus, where a defense has several elements, lack of substantial evidence on any element bars relief, even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.)
Defendant argues the workers compensation exclusivity rule bars Plaintiff’s complaint. Ordinarily, when an employee sustains a worksite injury, the exclusive remedy against his or her employer is provided by the workers’ compensation law, and the employer is immune from a suit for damages. (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1051.) An employee’s injury is subject to the workers’ compensation
exclusivity rule if specified “conditions of compensation” exist at the time of injury, including that the employee is “performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.” (Lab. Code § 3600, subd. (a)(1)-(9).) The workers’ compensation exclusivity rule extends to coemployees, with certain exceptions not applicable here. (Lab. Code § 3601, subd. (a).)
“[F] an injury to occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto and the injury must occur within the period of his employment and at a place where he may reasonably be for the purpose.” (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (1976) 59 Cal.App.3d 647, 652; Lab. Code § 3351 [an “employee” for purposes of workers’ compensation means “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed”]; Laeng v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 771, 782-783 [pre-hire applicant was an “employee” because services were incurred for the benefit of the employer and performed according to its assignment and under its direction and control].)
Defendant failed to meet its initial burden establishing Plaintiff was an “employee” of defendant Westcoast Tree Services, Inc. (Westcoast) performing services at the behest of Westcoast at the time of the injury. There are no such facts in Defendant’s separate statement. (United Comm. Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded statute on other grounds [“This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist”]; Parsons v. Estenson Logistics, LLC (2022) 86 Cal.App.5th 1260, 1265, fn. 5.)
Moreover, the only evidence produced by Defendant on Plaintiff’s purported employment status is Plaintiff’s responses to interrogatories and Plaintiff’s deposition testimony. (Declaration of Lauren G. Kane, Exs. C, D.) While Plaintiff testified that he was with Juarez on a “workrelated trip,” he also testified he hadn’t yet started employment with Westcoast at the time of the accident. (Id. at Ex. D at pp. 14-15.) Nor did Defendant produce any evidence of an employment agreement between Westcoast and Plaintiff, or that Plaintiff performed any services on assignment, direction or control of Westcoast. Defendant having failed to meet his initial burden, the burden never shifted to Plaintiff. The motion is therefore DENIED.
Counsel for Plaintiff shall give notice of this ruling.
16. Uptown Newport Jamboree, LLC v. Newport Fab, LLC 18-973247 Before the court is a motion by Uptown Newport Jamboree, LLC (Uptown) for an order allowing it leave to file a second Motion for Summary Judgment as to the First Amended Cross Complaint (FAXC) filed by Newport Fab, LLC dba Jazz Semiconductor (Jazz). The motion is DENIED, for the reasons set forth herein.