Viani v. Fair Oaks Estates CA3

Filed 4/18/23 Viani v. Fair Oaks Estates CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

MIRANDA VIANI et al., C094672

Plaintiffs and Appellants, (Super. Ct. No. 34-2020- 00280046-CU-PO-GDS) v.

FAIR OAKS ESTATES, INC.,

Defendant and Respondent.

Plaintiffs Miranda Viani et al., appeal from their own voluntary dismissal of the entire action without prejudice, entered after the court granted summary adjudication on two out of three causes of action alleged in the first amended complaint. We conclude that a voluntary dismissal without prejudice is not a final judgment appealable on the merits, and therefore must dismiss the appeal. PROCEDURAL BACKGROUND We only briefly summarize the procedural history because a detailed recitation of the facts is unnecessary to our resolution of this appeal.

1

On June 2, 2020, plaintiffs commenced this action by filing a complaint against defendant Fair Oaks Estates, Inc. (Fair Oaks Estates). On November 9, 2020, plaintiffs filed their first amended complaint. The first amended complaint alleges claims against Fair Oaks Estates arising out of the injury and resulting death of Debra Baker (the decedent), a resident at the Fair Oaks Estates senior assisted living facility. Specifically, the amended complaint alleges that on July 17, 2019, nine days after checking into the assisted living facility, the decedent suffered a fracture to her right leg while being transferred by one of the facility’s employees. The complaint alleges that the fracture caused the decedent’s health to suddenly deteriorate, resulting in her death eight days later, on July 25, 2019. The amended complaint alleges three causes of action against Fair Oaks Estates: for negligence, breach of contract, and wrongful death. On February 24, 2021, Fair Oaks Estates filed a motion for summary judgment or, in the alternative, summary adjudication. The motion argued that plaintiffs could not show that defendant’s conduct caused or contributed to the decedent’s death. In support of the motion, Fair Oaks Estates submitted the declaration of Gary W. Steinke, M.D. Plaintiffs opposed the motion for summary judgment/adjudication. Plaintiffs argued that (1) Dr. Steinke’s expert declaration was legally insufficient to shift the burden to plaintiffs to demonstrate a triable issue of material fact; (2) even if Dr. Steinke’s declaration was sufficient, plaintiffs presented a competing expert declaration sufficient to raise a triable issue of material fact. To rebut Dr. Steinke’s opinion, plaintiffs offered the declaration of Jay V. Solnick, M.D., Ph.D. Before the hearing, the trial court issued a tentative ruling granting summary adjudication on the first (negligence) and third (wrongful death) causes of action, denying summary adjudication on the second (breach of contract) cause of action, and denying summary judgment. The court reasoned that the declaration of Dr. Steinke carried defendant’s initial burden to negate plaintiffs’ claim that the purported negligence or