Menon v. Memorial Care Saddleback Medical Center

Plaintiff’s motions as to the remaining interrogatories are moot.

Transpak did not show TransPak acted with substantial justification or that the imposition of sanctions would be unjust. TransPak shall pay The Finkel Firm the total amount of $3,500 in 30 days. (Code Civ. Proc., § 2030.300, subd. (d); Cal. Rules of Ct., Rule 3.1348(a).)

Plaintiff shall give notice.

8 Menon vs. Memorial Care Saddleback Medical Center

2024-01379144 Motion for Summary Judgment and/or Adjudication

Defendant Cimberly Penick, D.O.’s (“Defendant”) Motion for Summary Judgment is granted.

Plaintiffs Parvathi Devi Geetha Devi and Shreejith Menon, individually, and as the guardian ad litem of Krishna Menon (“Minor,” collectively, “Plaintiffs”), assert causes of action for medical negligence and negligent infliction of emotional distress against Defendant. With respect to the moving defendant, Plaintiffs allege Defendant was negligent in the “prenatal, labor and delivery and post-delivery care of” Minor and Devi; that Minor “suffered severe and irreversible brain damage and additional physical injuries that currently require daily dialysis treatments and a feeding tube on year post-birth”; and, Devi “suffered severe pain, suffering, and emotional distress.” (Compl. at pp. 4-5, ¶ GN-1.)

Under their fourth cause of action for negligent infliction of emotional distress, Devi and Menon allege they are “entitled to recover for this emotional distress” pursuant to Thing v. La Chusa (1989) 48 Cal. 3d 644.” (Compl. at p. 7, ¶ GN-1.) Defendant moves for summary judgment as to every negligence claim against her on the grounds that: [1] she at all times complied with the applicable standard of care; [2] her conduct was not a substantial factor in causing any of the alleged damages; and, [3] a bystander theory of negligent infliction of emotional distress fails without the existence of any underlying, independently actionable tort. (ROA 102 [Not. of Mot. at p. 2].)

Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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 p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development 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 [defendant only required to defeat allegations reasonably contained in the complaint].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

Medical Negligence Claims “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.” (San Antonio Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346, 350, citing Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.” (Ibid., citing Lattimore v.

Dickey (2015) 239 Cal.App.4th 959, 968.) “Proving the third element, causation, also requires “ ‘competent expert testimony.’ ” (Ibid., Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1336.)

“An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) Per Evidence Code section 720, “[a] person is qualified to testify as an expert if he has special

knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) The expert declaration must disclose the matters relied on in forming its opinion. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 [expert declaration not admission because “it did not disclose the matter relied on in forming the opinion expressed”].) The matter relied on must, itself, be properly authenticated and placed before the court. (Garibay v.

Hemmat (2008) 161 Cal.App.4th 735, 743 [moving defendant failed to meet initial burden where expert stated he relied on medical records that were not before the court; “An expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value”]; accord Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 505 [trial court erred in concluding that plaintiff’s expert failed to raise a triable issue of fact, and his declaration had no evidentiary value; although medical history relied on was not attached to plaintiff’s expert’s declaration, the records had already been properly authenticated and placed before the court by the defendant].)

Here, Defendant has provided a declaration from Roy Z. Mansano, M.D. (ROA 103.) Dr. Mansano attests he is a physician licensed to practice medicine in the State of California and that he is currently in private practice in the San Fernando Valley. He is board-certified in obstetrics and gynecology as well as maternal fetal medicine. (Mansano Decl. at ¶¶ 1-2.) In preparing his declaration he reviewed the materials that were submitted in connection with this motion, including Mother’s and Minor’s medical records. (Mansano Decl. at ¶ 5.)

Dr. Mansano opines, in relevant part, that: “Based upon my review of the above-delineated medical records, as well as my education, training, and experience, it is my opinion, to a reasonable degree of medical probability, that Dr. Penick complied with the standard of care in her care and treatment of plaintiff. She appropriately monitored the fetus, consulted with a maternal-fetal medicine specialist, and proceeded with Cesarean section according to plan when the abdominal ultrasound was suspicious for bleeding.” (Mansano Decl. at ¶ 13.)

Dr. Mansano further states, “it is also my opinion that, to a reasonable degree of medical probability, Dr. Penick did not cause or contribute to any delayed delivery or adverse outcome, including [Minor’s] NICU admission and subsequent diagnosis of mild hypoxic ischemic encephalopathy secondary to placental abruption because she timely evaluated plaintiff’s complaints and upon performing an ultrasound that was suspicious for bleeding she promptly took plaintiff to surgery for an emergency Cesarean section delivery.” (Mansano Decl. at ¶ 15.)

Plaintiffs did not submit any objections to this testimony. Based on the foregoing, the Court finds Defendant met her initial burden of showing that the care provided to Minor and Devi were, to a reasonable degree of medical probability, within the applicable standard of care in the community, and that no negligent act or omission by Defendant was a substantial factor in causing the alleged damages.

Negligent Infliction of Emotional Distress Claim “Negligent infliction of emotional distress “ ‘is not an independent tort, but the tort of negligence,’ ” to which “ ‘traditional elements of duty, breach of duty, causation, and damages apply.’ ” (Downey v. City of Riverside (2024) 16 Cal.5th 539, 547, citation omitted.) In other words, a bystander’s claim for negligent infliction of emotional distress depends upon the existence of an act of negligence that caused injury to the victim. (Thing v.

La Chusa (1989) 48 Cal.3d 644, 647 [“It is in that context that we consider the appropriate application of the concept of ‘duty’ in an area that has long divided this court— recognition of the right of persons, whose only injury is emotional distress, to recover damages when that distress is caused by knowledge of the injury to a third person caused by the defendant’s negligence”] [emphasis added].)

Because Defendant has met her burden on the medial negligence claims, Plaintiffs’ bystander theory of recovery under Thing v. La Chusa, which is based on witnessing a “negligent injury” to Minor, also fails absent a triable issue of fact on the negligence claim.

Request for Continuance Plaintiffs’ only basis for opposing the motion is that the motion is “premature as facts essential to Plaintiffs’ Opposition exist but cannot currently be presented because there has unfortunately developed an irremediable breakdown in the attorney client relationship [.]” Plaintiffs request “a continuance of the pending Motion for Summary Judgment for 120 days while the Plaintiffs seek new counsel.” (ROA 151 [Opp’n at p. 2].)

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” Alternatively, the motion “may also be made by ex parte motion at any time on or before the date the

opposition response to the motion is due. (Code Civ. Proc., § 437c, subd. (h).)

“A declaration in support of a request for continuance under section 437c, subdivision (h) must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) The party requesting a continuance does not need to show that the evidence does exist, but it must show that it may exist. Further, the supporting affidavit or declaration “must detail the specific facts that would show the existence of controverting evidence.” (Granadino v.

Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.) If this showing is made, then the continuance is “virtually mandated.” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34, citation omitted.) “Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h).” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)

Here, Plaintiffs’ counsel states that the breakdown in the attorney client relationship is the reason why “Plaintiffs are currently unable to present contrary expert testimony in opposition to Dr. Penick’s MSJ.” (Rosenthal Decl. at ¶ 4.) In his declaration, Menon states that he and his wife “believe this case has merit” and “believe the evidence supports viable claims of medical negligence.” (Menon Decl. at ¶¶ 3, 5.) However, Memon does not establish how he is qualified as an expert to attest to these matters, nor does he even explain why he thinks this case may have merit as against Defendant. Plaintiffs’ supporting declarations do not meet the showing required under CCP section 437c(h), because they do not show there is any reason to believe that the facts necessary to oppose the motion may exist.

The Court notes this action was filed in February 2024 (i.e., more than two years ago). Defendant’s counsel attests that no written discovery has been served by Plaintiffs, nor have they noticed the depositions of any defendant or witnesses. (ROA 161 [Bunch Decl. at ¶ 4].) Plaintiffs’ counsel’s (recent) request to withdraw does not explain why opposing evidence could not have been obtained in the more than two years since this action was filed, or the months since this motion was filed.

For the foregoing reasons, Defendant Penick’s motion for summary judgment is granted; Plaintiffs’ request for a continuance is denied.

Defendant is ordered to give notice of the ruling.

9 Merchant Star International General Trading, LLC vs. Kiani

2021-01219185 Motion to Disqualify Attorney of Record

As to the motion filed by Merchant Star International General Trading, the court will hear argument. Oddly, other motions were filed on the Merchant Star Reservation number. They are not on calendar and will not be entertained at this time. 10 Michel vs. BMW Financial Services NA, LLC

2024-01423542 Motion for Protective Order

Off Calendar 11 Prato Properties LLC vs. Lee & Associates Commercial Real Estate Services, Inc. - Irvine, a California Corporation

2021-01234131 1. Motion for Reconsideration 2. Status Conference

Continued to 08/17/2026 12 Ruelas vs. FCA US LLC

2025-01527800 1. Demurrer to Complaint - Withdrawn 2. Motion to Strike Complaint - Withdrawn 3. Case Management Conference – Continued to 07/13/2026