Motion for Summary Judgment and/or Adjudication
2025-01494975 Continued to 07/06/2026 6 Pham vs. Truong, MD.
2024-01407145 Motion for Summary Judgment and/or Adjudication
The unopposed motion of defendants Son Truong, M.D. and Struong Cosmetic for summary judgment on plaintiffs Binh Duong and Dieu Pham aka Mei Tiao Fan for medical negligence and loss of consortium is granted.
Legal Standard
A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.
Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575. The scope of this burden is determined by the allegations of the plaintiff’s complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382 (pleadings serve as the outer measure of materiality in a summary judgment motion); 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 (respondent only required to defeat allegations reasonably contained in the complaint).
A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.
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Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Id. In making this determination, the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal. pp.4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.
Substantive Law The elements of a professional negligence cause of action are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or
damage resulting from the professional negligence. Galvez v. Frields, 88 Cal.App.4th 1410, 1420 (2001).
In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. Alef v. Alta Bates Hospital, 5 Cal.App.4th 208, 216 (1992). A mere possibility the defendant’s negligence caused the wrong is insufficient. Simmons v. West Covina Medical Clinic, 212 Cal.App.3d 696, 702 (1989). There exists an obvious distinction between a reasonable medical probability and a medical possibility. Id. There can be many, even an infinite number of possible circumstances, which can produce an injury. Id. But a “possible” cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Id.
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. Munro v. Regents of the University of Calif., 215 Cal.App.3d 977, 985 (1989).
Here, Defendants have submitted expert testimony that Dr. Truong performed up to the applicable standard of care and did not cause his patient’s death. [Applebaum Decl., ¶¶ 32-47.] Plaintiffs have not submitted a counter expert witness declaration that raises triable issues of fact as to whether Defendant’s treatment of Plaintiff Fan met the applicable standard of care and caused or substantially contributed to her injuries.
In the absence of any triable issue of fact, Defendants are entitled to summary judgment as to Plaintiff Fan’s medical negligence cause of action.
•Loss of Consortium A spouse’s loss of consortium claim rises or falls with the other spouse’s medical malpractice claim. Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256. Accordingly, Defendants are also entitled to summary judgment on Plaintiff Duong’s loss of consortium claim.
The motion for summary judgment is therefore granted.
Defendant to give notice.