From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) A defendant can meet his initial burden by showing that on or more elements of the cause of action cannot be established, or that there is a complete defense. (CCP §437c(p)(2).) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff’s cause of action, or show that the plaintiff lacks evidence. (Chavez v.

Glock (2012) 207 Cal.App.4th 1283, 1301.) To negate an element, the defendant must establish that plaintiff’s claims fails as a matter of law. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 849 (applying rule to issues of duty).) To demonstrate that the plaintiff lacks evidence, the defendant must show that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, 25 Cal.4th at 855.) A defendant may not simply point to an absence of evidence, but must show that the plaintiff cannot reasonably obtain evidence. (Gaggero v.

Yura (2003) 108 Cal.App.4th 884, 891.)

The duty owed by a medical provider is established by the standard of care followed by other medical providers in the same or similar community. “Expert evidence in a medical malpractice suit is conclusive as to the proof of the prevailing skill and learning in the locality and of the propriety of the particular conduct by the practitioner and in particular instances because such a standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Willard v. Hagemeister (1991) 121 Cal.App.3d 406, 412

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.) Where the moving party produces competent expert opinion declarations showing that there is no triable issue of fact on an essential element of the opposing party's claim, the opposing party's burden is to produce competent expert opinion declarations to the contrary. (Ochoa v. Pacific Gas & Elec. Co. (1998) 61 Cal.App.4th 1480, 1487.)

Defendants present the declaration of Dr. Andersson. (Moving Lodged Evidence, Ex. N.) However, the declaration was not signed. Accordingly, the court continued the hearing to allow a signed version of the declaration to be submitted. Defendants corrected this on 5/5/26 by submitting a signed declaration.

Dr. Andersson states he is familiar with the standard of care for nurse practitioners and neurologists, along with medical groups. (Andersson Decl. ¶1.) On October 21, Reus and Dutaret (who was via tele neurology), conducted an evaluation. (Andersson Decl. ¶9.) The plan was an MRI, continue with IV methylprednisolone and neuro checks every four hours. (Andersson Decl. ¶9.) Reus reevaluated Plaintiff on October 22, and ordered a STAT cervical and thoracic spine CT scan and STAT MRI. (Andersson Decl. ¶10.) Plaintiff received a cervical spine MRI on October 22.

(Andersson Decl. ¶11.) On October 23, Reus documented Plaintiff refusing the thoracic spine MRI but complained of worsening numbness and weakness. (Andersson Decl. ¶12.) On October 24, Reus reevaluated Plaintiff and the plan was to obtain a neurosurgery and/or orthopedic spine consult. (Andersson Decl. ¶15.) An orthopedic consult was performed on October 27. (Andersson Decl. ¶17.) On the same day, Dutaret co-signed the note, and reported that surgery was indicated for the same day. (Andersson Decl. ¶18.)

Andersson opines that Dutaret met the standard of care and did not cause or contribute to Plaintiff’s injuries. (Andersson Decl. ¶21, 25.) He states that the initial neurology consultation was within the standard of care given the Plaintiff’s symptoms, history of neuropathy, etc. (Andersson Decl. ¶23.) There was no further treatment provided by Dutaret until October 27, when the Plaintiff was to undergo surgical intervention. (Andersson Decl. ¶24.)

Again, while Plaintiff complains of Andersson’s declaration, she did not provide any objections. (Cal. R. Ct. 3.1354.)

In opposition, Plaintiff also relies on Dr. Hixson. (Oppo. Lodged Exhibit 2.) Dr. Hixson is also board-certified in neurology. (Hixson Decl. ¶2.) The only mention of Dutaret is performing teleneurology services, and directed Reus to perform an exam on October 21. (Hixson Decl. ¶14.) Dutaret made a primary diagnosis of cervical myelopathy with additional considerations of spinal cord compression, d/t tumor or disc disease, transverse myelitis, and demyelinating disorder such as MS. (Hixson Decl. ¶14.)

The only other mention of Dutaret is that she was back on shift on October 27, did not see Plaintiff, but signed off on the final documentation concerning pre-surgical neurology. (Hixson Decl. ¶24.) This was the first time Dutaret reviewed the cervical imaging, which confirmed cervical myelopathy and right cervical radiculopathy due to cervical spondylolisthesis with cord compression. (Hixson Decl. ¶24.)

Dr. Hixson opines that Dutaret’s initial differential diagnosis inclusive of transverse myelitis and the orders for imaging were reasonable. (Hixson Decl. ¶26.) Where he distinguishes the claim is that an in-person exam is required for suspected spinal cord compression. (Hixson Decl. ¶26.) He contends that remote review is insufficient and that Dr. Dutaret failed to escalate a call for an in-person examination. (Hixson Decl. ¶26.) Dr. Dutaret had no plan should an MRI confirm compressive disease or if Plaintiff’s condition worsened. (Hixson Decl. ¶26.)

Hixson states that there was a “systems failure” in the handling of Plaintiff’s condition—attributable to CRMC and CEP America-California, by and through its agent neurologists and nurse practitioners. (Hixson Decl. ¶29.) Hixson contends that the failure to escalate after the October 22 MRI or at a minimum by October 24 when the MRI was confirmed was a substantial factor in causing Plaintiff’s decline. (Hixson Decl. ¶30.) He states that spinal cord compression is a time-sensitive condition that requires urgent operative evaluation. (Hixson Decl. ¶31.) He opines that it was not wrong to continue testing and treatment for inflammatory myelitis, but surgical evaluation and consideration should have been escalated. (Hixson Decl. ¶31.) He concludes that “Defendants” fell below the standard of care and was a substantial factor in Plaintiff’s injuries. (Hixson Decl. ¶32.)

The problem with the use of tele neurology and the “systems failure” is it is unclear how that is attributable to Dutaret, rather than CDCR.

Hixson also opines that there was a delay in urgency of getting Plaintiff seen by a neurosurgeon or orthopedic surgeon. Dutaret saw Plaintiff on October 21 and did not see Plaintiff again until October 27, the date of her surgery. Plaintiff’s case should have been escalated by October 22 or at a minimum, October 24. (Dixson Decl. ¶30.) But Dutaret saw Plaintiff on October 21. There is no indication that Dutaret saw Plaintiff between October 22-24, to escalate the issue.

The only specific allegations of Dutaret’s wrongful conduct is the failure to get an in-person exam by a neurologist, or come up with a plan should an MRI confirm compressive disease or if Plaintiff’s condition worsened. (Hixson Decl. ¶26.) Defendant contends that it is unclear whether an in person neurologist was available, but that is a factual question. Defendant does not address whether Dutaret should have come up with a plan depending on the MRI results. As such, there is a triable issue and the court denies the motion as to Dutaret.

1. CEP America-California

It is not clear as to the theory of liability as to Defendant CEP America-California (erroneously sued as Vituity). The complaints has two references to Vituity. First, Defendants were physicians, medical corps, health maintenance organizations, surgeons, surgical nurses and technicians, office personnel, physical therapists and paramedical professionals. (Complaint ¶4.) Second, Defendants were agents, servant, representative, partner, or employee of each of their co-Defendants. (Complaint ¶7.) Otherwise, there are general allegations of “Defendants.” (Complaint ¶10-12, 18, 20- 21.) Defendants do not identify any discovery responses from Plaintiff that clarify the theory of liability as to CEP America-California.

The only mention of CEP-America is in Andersson’s conclusions in his declaration—as a result, since Dutaret was associated with CEP America-California, there was no breach of the standard of care by Dutaret or CEP America-California or causation. (Andersson Decl. ¶26; see also Undisputed Fact (UF) no. 27.)

In response to UF no. 27, Plaintiff appears to concede that Dutaret was an agent of CEP America-California, and is liable under the doctrine of respondeat superior. Thus, the motion as to CEP America-California stands or falls with Dutaret. The motion is denied.