Lorena Maldonado vs. Khanh Q Le

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided. TENTATIVE RULING: Defendant Khanh Q. Le’s motion for summary judgment is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 20 Undisputed Material Facts, which of opposing plaintiff’s 54 Additional Material Facts, and/or which of moving defendants’ written objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a

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triable issue of material fact. ***

The Court notes that both moving and opposing counsel submitted in support of and opposition to this motion medical evidence pertaining to plaintiff which may be considered private and protected by HIPAA and/or California’s Confidentiality of Medical Information Act at Civil Code §56. Counsel is reminded that the Court’s online records system allows the public to electronically access and view all pleadings and papers once they are filed, unless the Court orders otherwise. Thus, it is imperative for counsel to appropriately redact all pleadings and documents before filing.

Should either party desire to shield the aforementioned medical evidence from public view, they should promptly file and serve an appropriate noticed motion to seal pursuant to CRC Rule 2.550 et seq. and lodge with the Court appropriately redacted but otherwise identical versions of the various documents filed in support of and/or opposition to this motion which contain the unredacted private medical information. (In the absence of such a motion, the private medical information will remain viewable by the public.)

Both moving and opposing failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including declarations) with a table of contents when the evidence exceeds 25 pages.

Both moving and opposing counsel failed to comply with CRC Rule 3.1350(d)(3) and (f)(2)-(3), requiring all citations to supporting evidence include reference to the exhibit, title, page, and line numbers, rather than by mere paragraph numbers.

Moving counsel failed to comply with CRC Rule 3.1116(b) and (c), requiring deposition testimony offered as an exhibit include only the cover page and the relevant pages of the transcript and be highlighted in a manner that calls attention to the cited testimony.

Opposing counsel’s separate statement of additional material facts fails to comply with two-column format specified in CRC Rule 3.1350(f).

The Court notes that counsel’s failure to comply with the applicable Rules of Court has caused an undue consumption of judicial resources and both moving and opposing counsel are advised that their failure to comply with applicable Rules of Court may in the future result in the non-compliant papers being stricken or otherwise disregarded.

Factual Background

This is a personal injury action arising out of plaintiff’s visit to nail salon/spa back in October 2020. Plaintiff alleges that as a result of defendant’s negligence in performing a pedicure, her toe was cut and became severely infected, resulting in hospitalization

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and multiple surgeries. Trial of this action is currently set for April 2025.

Moving Papers. According to the Notice of Motion, defendant now seeks summary judgment on plaintiff’s complaint for negligence on the grounds that there are no triable issues of material fact and plaintiff is “unable to establish legal causation.” (Not. of Mot., p.1:23-27.) More specifically, defendant asserts that the alleged cut/scratch healed within a few days of the pedicure and when plaintiff went to the emergency room a month later in November 2020, she indicated her foot pain had started just two days before and the records from this visit do not even mention the alleged cut/scratch.

Instead, the records describe swelling and tenderness on the bottom of her foot. Defendant adds that plaintiff never mentioned the alleged cut/scratch to the doctors who later treated the foot infection (MRSA) and one doctor opined that plaintiff’s condition was not consistent with “infectious etiology.” Defendant’s own infectious disease expert, Dr. Jacobs, avers to a reasonable medical probability that plaintiff’s foot infection was not related to the pedicure in October 2020 and the likely cause was a callous underneath her second toe.

As noted above, defendant’s moving separate statement offers Undisputed Material Fact (“UMF”) Nos. 1-20 as support for summary judgment.

Opposition. Plaintiff opposes, claiming there is no dispute she had a MRSA infection which required hospitalization and significant treatment. The opposition maintains that defendant’s pedicurist failed to sterilize the equipment before beginning plaintiff’s pedicure and also used the same water as the prior customer. While the moving papers contend there is no causation, plaintiff contends there are triable issues of material fact because (1) her deposition testimony “directly contradicts the premises upon which Dr.

Jacob’s opinion is based,” even though he claims to have reviewed her testimony; (2) Dr. Jacob’s conclusion “about how plaintiff became infected is contrary to the medical records and beyond his expertise;” and (3) Dr. Jacob’s opinions are contradicted by the opinions and conclusions reached by two different doctors, Drs. Witt and Schuberth. (Oppos., p.2:3-23.) The opposition further asserts that roughly one-half of defendant’s 20 UMFs are “disputed,” at least in part and plaintiff also advances 54 of her own Additional Material Facts (“AMF”) claimed to demonstrate triable issues of fact which preclude summary judgment for defendant.

Standards for Summary Judgment

In ruling on a motion for summary judgment, the Court engages in a three-step process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382) and the evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v.

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Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. A defendant moving for summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) This burden may be met by establishing either that one or more elements of a cause of action, even if not separately pleaded, cannot be established or that there is a complete defense to the cause of action.” (Code Civ.

Proc. §437c(p)(2).) A defendant cannot successfully shift the burden to a plaintiff by merely suggesting the possibility that the latter cannot prove his/her case but must make “an affirmative showing” in support of its motion. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) If a plaintiff pleads several theories of liability against the defendant, then the latter has the burden of demonstrating there are no material facts requiring trial on any of them. A moving defendant whose evidence omits facts as to any theory of liability effectively permits that portion of the complaint to be unchallenged and even where no opposition is presented, a moving defendant must still make a showing sufficient to eliminate all triable issues of fact. (Wright v.

Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228; see also Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397.)

A plaintiff opposing summary judgment has no evidentiary burden unless the moving defendant has first met its initial burden. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.) If a moving defendant has met its initial burden, the burden then shifts to the opposing party to show the existence of a material factual issue as to the cause of action alleged or the defense to it. (Code Civ.

Proc. §437c(p)(2); see also, Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) Only where the moving defendant makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Id.)

In ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766,

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773.)

Finally, before turning to the specific issues raised by this motion and the oppositions, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

That said, the Court now turns to the specific contentions advanced in support of and opposition to this motion.

Objections to Evidence

Plaintiff’s Objections. Plaintiff filed no separate document containing written objections to evidence in conformity with the express requirements of CRC Rule 3.1354.

To the extent plaintiff’s separate statement in response to defendant’s UMF Nos. 1-20 purports to assert objections to the evidence which defendant offered as support for UMF Nos. 6, 9, 12 and 17-19, such objections are overruled because they do not comply with CRC Rule 3.1354(b)’s requirement that objections to evidence not only be filed “separately from the other papers” but also “quote or set forth the objectionable statement or material.” Unless plaintiff specifically quotes or sets forth the “objectionable statement or material,” this Court is unable to rule on its admissibility. Additionally, neither “vague” nor “compound” is a not valid objection which affects the admissibility of defendant’s evidence and to the extent plaintiff’s objections in response to defendant’s UMF Nos. 6, 9, 12 and 17-19 are directed at the UMFs themselves, they are overruled because objections are properly directed at evidence only. (See, CRC Rule 3.1352, 3.1354.)

Defendant’s Objections. Defendant’s written objections to evidence filed on 3/22/2024 appear to include objections not only to the declarations by Drs. Witt and Schuberth (see, Def. Obj. to Evid., p.2:1-p.8:6) but also to several of plaintiff’s own 54 AMFs advanced in opposition to summary judgment (see, Def. Obj. to Evid., p.8:7-p.14:14). The latter objections to plaintiff’s AMFs themselves shall be overruled because objections are properly directed at evidence only. (See, CRC Rule 3.1352, 3.1354.) To the extent these objections could otherwise be construed as objections to the evidence which plaintiff cited as support for the individual AMFs, these objections are overruled

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since defendant failed to “quote or set forth the objectionable statement or material” as required by CRC Rule 3.1354(b)(3) and without knowing exactly what defendant is objecting to, the Court is unable to rule on its admissibility. Additionally, “misstates the evidence” is not a valid objection pertaining to the admissibility of evidence.

Defendant’s objections to the cited portions of the declaration by Dr. Witt in opposition are overruled as the Court finds that the doctor has provided an adequate foundation for his statements, opinions and conclusions. To the extent he may have ‘misstated’ certain facts or evidence or may have assumed facts not in evidence, this alone does not render the declaration or individual statements therein inadmissible but rather this would affect his credibility as an expert witness and the weight of his expert testimony.

Defendant’s objections to the cited portions of the declaration by Dr. Schuberth in opposition are overruled. With respect to objection No. 1, the mere fact the doctor omitted from his declaration certain findings of the CT scan does not make the statement objected to inadmissible but at best, merely affects his credibility as an expert witness and the weight of his expert testimony. Defendant’s objection No. 2 is overruled as the doctor has laid an adequate foundation for his statements, opinions and conclusions. Finally, objection No. 3 pertaining to the declaration’s concluding paragraph asserting that the doctor has “personal knowledge of the facts” in the declaration is overruled because it is not conclusory and “misstates the facts” is not a valid objection pertaining to the admissibility of evidence.

Discussion

As explained above, the threshold question on a motion for summary judgment is always whether the moving papers are sufficient to satisfy the moving party’s initial burden of production under Code of Civil Procedure §437c(p). Even assuming arguendo that the moving papers here are sufficient to satisfy the defendant’s initial burden §437c(p)(2) and successfully shifted to plaintiff the burden to produce admissible evidence which shows the existence of at least one triable issue of material fact, the Court finds that plaintiff has carried her burden of production. Coupled with the fact that the evidence in opposition must be construed liberally while the evidence in support is construed narrowly, plaintiff has adequately demonstrated the existence of a triable issue of material fact relative to the cause of plaintiff’s infection.

According to defendant, plaintiff cannot establish any negligence on the part of defendant was the cause of the foot infection plaintiff later suffered and as support, defendant proffers the declaration of Dr. Jacobs which avers that the infection was not related to the pedicure in October 2020 but rather was likely caused by a callous underneath her second toe. In contrast, the opposition includes declarations by two different doctors both of whom aver that plaintiff’s infection and related complications

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were caused by an injury which occurred during the October 2020 pedicure. Since all of defendant’s objections to these two declarations have been overruled, the doctors’ statements, opinions and conclusions must be construed broadly and as such, are at a minimum sufficient to create a triable issue of material fact with respect to the element of causation. The Court finds at minimum that plaintiff has established triable issues of material fact as to defendant’s asserted UMF Nos. 12, 15-16 and 18-20.

Any one of these disputed material facts would alone mandate defendant’s motion be denied. While plaintiff also takes issue with other asserted UMFs that are not reliant upon expert declarations, the Court need not proceed further in addressing those UMFs or the arguments related thereto. Accordingly, this Court holds that defendant is not entitled to summary judgment on the sole ground advance in the Notice of Motion.

Disposition

For the reasons explained above, defendant Le’s motion for summary judgment must be DENIED in its entirety.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)