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Court of Appeal, Second District, California.

MARGARITA SANCHEZ et al., Plaintiffs and Appellants, v. RICARDO RIVAS–PLATA et al., Defendants and Respondents.


Decided: October 24, 2011

Manuel Lopez for Plaintiffs and Appellants. Law, Brandmeyer & Packer, Yuk K. Law and Greg R. Bunch;  David J. Ozeran for Defendants and Respondents.


Plaintiffs Margarita Sanchez and Michael Sanchez appeal from the judgment entered after the court granted summary judgments in favor of defendants Dr. Ricardo Rivas–Plata and Dr. Linda Aoyama in this wrongful death action.   Margarita and Michael are the children of decedent Patricio Sanchez who was 80 years old at the time of his death.1  Plaintiffs contend the court erred in granting summary judgment as defendants did not meet their initial burden of production.   We affirm.


I. Background

On April 7, 2006, Patricio was taken to the emergency department of White Memorial Medical Center after an episode of confusion.   Patricio had called the police after he believed he had heard voices in his bedroom.   After the police searched Patricio's home and could not find evidence of an intruder, they called emergency medical services.   In the emergency room, Patricio remained confused, and he could not sign any of his registration forms because of his mental state.

Again on January 23, 2007, Patricio was admitted to White Memorial Medical Center.   On this occasion, Patricio's neighbors had reported finding him in the dirt clinging to a fence for a long time.   Patricio was examined by a physician who opined that Patricio's behavior was possibly due to dementia.

Subsequently on March 6, 2007, Dr. Rivas–Plata examined Patricio and diagnosed him with dementia, most likely of the Alzheimer's variety.   Several months later, Dr. Rivas–Plata re-evaluated Patricio's condition and documented that his Alzheimer's was stable and that because of familial problems, Patricio still did not have a permanent living situation.   The report noted that Patricio had experienced episodes of wandering and confusion but had not exhibited any aggressive behavior.   Dr. Rivas–Plata referred Patricio to Dr. Aoyama for a mental state examination and medical management regarding Patricio's social and behavioral issues.   During a visit on July 13, Dr. Aoyama opined that Patricio had moderate or severe dementia with severe behavioral disturbances.

During a follow up examination on August 30, 2007, Dr. Aoyama documented that Patricio's memory appeared worse and he was unable to feed himself or walk and required 24–hour supervision.   On September 11, Patricio was taken to HealthCare Partners Medical Group, an immediate care facility.   The physician at the facility documented stage II and III decubitus ulcers.   Patricio returned to see Dr. Rivas–Plata on September 17.   Dr. Rivas–Plata noted that the sacral decubitus ulcer was stage III, the wound had a foul odor, and the wound base was purulent.   Dr. Rivas–Plata consulted with Dr. Aoyama about a direct admission to a skilled nursing facility for wound care.   Dr. Rivas–Plata also proscribed antibiotics and advised Patricio's family to take him to a skilled nursing facility for immediate care.

On September 18, 2007, Patricio was admitted to Country Villa–Park Marino Health Care Center.   At that time, Patricio had a stage IV sacral pressure ulcer and a stage III buttock pressure ulcer.   Dr. Aoyama diagnosed Patricio with advanced dementia and behavioral disturbances.   Dr. Aoyama ordered wound care, physical therapy, occupational therapy and speech therapy evaluations.   During a wound care consult on October 2, another physician, Dr. Vander Laan documented that Patricio had rapidly progressive sacral decubitus ulcers.   Dr. Laan discussed the option of debridement with Patricio's family but also noted that the ulcers would likely never heal due to Patricio's poor nutritional status.

Patricio was admitted to Huntington Memorial Medical Hospital on October 3, 2007, for debridement of his sacral ulcer, which he underwent on October 6. On October 11, Patricio was transferred to Marlinda Imperial Convalescent Hospital.   During Patricio's brief stay at the hospital, his condition worsened, and hospice care was initiated on October 25.   Patricio passed away on October 28.

II. Second Amended Complaint (SAC)

The operative pleading, the second amended complaint (SAC), alleged wrongful death based on medical negligence.

On December 30, 2009, respondents filed motions for summary judgment.   The motions included an expert declaration from Dr. Peter Glassman who reviewed the medical care and treatment provided by respondents.   Dr. Glassman's declaration stated that both respondents had met the standard of care and concluded that to a reasonable medical probability, respondents did not cause Patricio's death.

Appellants filed an opposition to the motions for summary judgment claiming respondents were negligent in the care rendered to Patricio.   The opposition also maintained that the declaration of Dr. Glassman was deficient in that he did not review the medical records of Patricio from when Patricio lived in New Mexico for less than two months.   The opposition did not include an expert declaration, only the declaration of Margarita.

In her declaration, Margarita stated that Patricio had lived with her in New Mexico from March 9, 2007, until April 26, 2007, and he had experienced an episode of dementia.   Patricio was taken to the Universilty of New Mexico Hospital where he was diagnosed with Lewd Body Dementia.   Margarita asserted that respondents had misdiagnosed Patricio with Alzheimer's and that it was inappropriate to proscribe the drug Zyprexa for him.   Margarita opined that respondents had failed to properly examine and treat Patricio, which caused his death, and that Patricio “had passed away as a result of his weakened condition due to the negligence of [respondents] whose treatment was below the standard of care.”

Respondents filed reply papers along with evidentiary objections and asserted that appellants had failed to raise a triable issue of fact.   Respondents noted that Margarita's declaration, signed in New Mexico, was not signed under penalty of perjury under the laws of the State of California.   After hearing argument and reviewing other documents, and taking the matter under submission, the court sustained respondents' objections to Margarita's declaration for two reasons:  the declaration was not executed under penalty

of perjury under the laws of the State of California,2 and she was not qualified to express the medical opinions set forth in her declaration.   The court granted summary judgment for both respondents.

Appellants filed a timely notice of appeal from the subsequent judgments.


I. Standard of Review

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  “Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of his opponent liberally construed.   Nevertheless, a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist.”  (Citation omitted.)  (Chern v. Bank of America (1976) 15 Cal.3d 866, 873.)   If the opposing party does not sustain that burden summary judgment is proper.  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 517.)

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)   Under California's summary judgment statute, if a defendant shows an element of the plaintiff's case cannot be established, then the burden shifts to the plaintiff to show a triable issue of fact.  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)   A plaintiff must set forth specific facts showing that a triable issue of material fact exists and cannot rely just on the allegations or denials of its pleadings.  (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

Similarly, an appellate court in its de novo review identifies the issues framed by the pleadings, determines whether the moving party's showing establishes facts which negate the other party's claims and justify a judgment in favor of the moving party, and ascertains whether the opposing party demonstrated a triable issue of material fact.  (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548 disapproved on another point in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.)

II. Burden of Production

Appellants contend the trial court erred in granting summary judgment because respondents did not meet their initial burden of production to make a prima facie case showing the the non-existence of any triable issue of material fact.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)   The basis of their position is that respondents did not request and take into consideration the treatment and medication Patricio received in New Mexico and failed to discuss the conflicting diagnosis and whether they disagreed with it.   Appellants assert that because respondents did not meet their burden of production, appellants did not have to come forward with conflicting evidence.

“[I]n any medical malpractice action, the plaintiff must establish:  ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise;  (2) a 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's negligence.’ ”  (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)

“ ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts;  it presents the basic issue in a malpractice action and can only be proved by their testimony.” ’ ”  (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)  “ ‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases.   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.’ ”  (Citations omitted.)  (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.)

Respondents submitted expert evidence in the form of Dr. Glassman's declaration wherein he stated that based upon a review of medical records, as well as his education, training and experience in internal medicine, Dr. Aoyama and Dr. Rivas–Plata had complied with the standard of care at all times.   Dr. Glassman's declaration was sufficient to establish a prima facie showing that appellants could not establish the breach of duty element of their cause of action.  (See Avivi v. Centro Medico Urgente Medical Cente r (2008) 159 Cal.App.4th 463, 467–468.)   On the other hand, appellants did not submit any authority or expert declaration to show that the two-month treatment Patricio received in New Mexico was relevant to the determination of whether respondents met their standard of care.

The only declaration submitted by appellants was that of Margarita.   Appellants assert that Margarita's declaration is significant because she was a witness to most events during this period;  however, they concede she was not an expert.   Thus, appellants did not create a triable issue of material fact.

The summary judgment procedure indicated that appellants did not possess evidence of respondents' alleged malpractice which demanded the analysis of a trial.  (Leasman v. Beech Aircraft Corp (1975) 48 Cal.App.3d 376, 380.)   Dr. Glassman's declaration stated facts sufficient to sustain a judgment, and Margarita's counter declaration did not proffer competent and sufficient evidence to present a triable issue of fact as to any purported malpractice.   Therefore, the issue of respondents' negligence in the care and treatment of Patricio was properly resolved when the summary judgment motion was granted.

As previously noted, without an expert declaration, appellants cannot establish that there was any misdiagnosis or that the administration of any drug by respondents resulted in Partricio's decline.   In essence, appellants ask the court to make evidentiary findings and speculate on whether respondents caused Patricio's decline and mobility.   Neither this court nor the trial court is in position to speculate on these matters without competent expert testimony.   The law is well settled that in a personal injury action causation must be proven within a reasonable probability based upon competent expert testimony.   Mere possibility alone is insufficient to establish a prima facie case.  (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)

Accordingly, without an expert declaration, appellants did not demonstrate the existence of a triable issue of fact.


The judgment is affirmed.   Respondents to recover costs on appeal.

We concur:


FN1. Family members are referred to by their first names..  FN1. Family members are referred to by their first names.

FN2. Unless executed under the laws of the State of California, even if signed under penalty of perjury, declarations signed outside the state do not satisfy the requirements of Code of Civil Procedure section 2015.5.  (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610–611.)   Thus, the trial court properly struck the declaration..  FN2. Unless executed under the laws of the State of California, even if signed under penalty of perjury, declarations signed outside the state do not satisfy the requirements of Code of Civil Procedure section 2015.5.  (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610–611.)   Thus, the trial court properly struck the declaration.