Filed 3/3/21 Borba v. Erickson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MEREDITH BORBA et al.,

Plaintiffs and Appellants,

v.

LARRY ERICKSON et al.,

Defendants and Respondents.

F078295

(Super. Ct. No. 2014781)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. 

Beauchesne, Judge.

Figari Law Firm and Barbara E. Figari for Plaintiffs and Appellants.

Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick; Galloway, Lucchese, 

Everson & Picchi, Michael C. Austin and Christopher A. Tanimasa, for Defendants and 

Respondents.

-ooOooPlaintiffs Meredith Borba and Frank Borba (collectively, the Borbas) appeal from 

the judgment entered after the trial court granted summary judgment on their fifth 

amended complaint, which stated a single cause of action for negligent infliction of 

emotional distress, in favor of defendants, Larry Erickson, M.D., Gould Medical Group, 
2.

and Sutter Gould Medical Foundation (Sutter Gould) (collectively, respondents). The 

Borbas’ claim was based on allegations that, after safely delivering their baby, 

Dr. Erickson handled the baby in a manner that restricted the baby’s airway, causing the 

baby to be temporarily discolored. Respondents supported their summary judgment 

motion with three experts’ declarations that Dr. Erickson met the applicable standard of 

care, he did not cause the baby’s injuries, and the baby was not injured. The trial court 

granted the motion after sustaining respondents’ evidentiary objections to the expert 

declaration the Borbas submitted in opposition to the motion.

On appeal, the Borbas contend they established triable issues of fact without 

expert testimony, which they assert was not required, and, in any event, their expert 

witness’s declaration, which created triable issues of fact, was improperly excluded from 

evidence. They also contend the trial court erred in: (1) denying their motion to compel 

discovery concerning respondents’ experts, which they brought after respondents filed 

their summary judgment motion but before the exchange of expert information; and 

(2) sustaining respondents’ demurrer to the Borbas’ claim of intentional infliction of 

emotional distress alleged in their fourth amended complaint. Finding no merit to the 

Borbas’ contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Meredith arrived at the labor and delivery unit at Doctors Medical Center of 

Modesto (Medical Center) at 8:55 p.m. on January 18, 2014, with spontaneous rupture of 

her membranes and was admitted as an inpatient at 11:00 p.m. for active labor.1 

Thereafter, she underwent continuous fetal heart rate monitoring with a Doppler 

1 Meredith has a Bachelor of Science degree in nursing and became a registered 

nurse in 2005. Since then she worked as a clinical nurse in the Neonatal Intensive Care 

Unit at the University of California San Francisco (UCSF) Medical Center, caring for 

babies from 23 weeks premature to term, and attending deliveries of healthy and sick 

babies, including high-risk deliveries. 
3.

ultrasound; the baby’s vital signs were within normal limits the entire duration of 

monitoring. At 8:30 a.m. the next morning, Meredith was dilated to 10 and was 100 

percent effaced, and the baby was doing well based on the monitor readings. 

Dr. Erickson was on-call for Meredith’s regular doctor, Dr. Robert Altman, and 

was called to the Medical Center to deliver the baby. It is not uncommon for OB/GYN 

medical groups to have an OB/GYN on call for each other since labor and delivery can 

and does occur anytime of the day or night. There was no emergency or emergent 

circumstance surrounding the course of Meredith’s labor, although at one point the nurse 

instructed Meredith not to push for 10 to 15 minutes, even though she was in 

“excruciating pain” and felt the need to, because they were waiting for Dr. Erickson to 

arrive. According to Meredith, while she was in labor, her nurses told her the medical 

group Drs. Altman and Erickson were affiliated with did not deliver at the Medical 

Center very often, and Dr. Erickson was “not happy” she was delivering there. 

Dr. Erickson was at Meredith’s bedside for the delivery at 8:39 a.m. This was the 

first time during her labor that Meredith was seen by any doctor, including Dr. Erickson, 

which Meredith found odd. According to the Borbas, Dr. Erickson did not say anything 

to them when he entered the room and only asked whether the nurse was going to take 

down the bed into a delivery position or whether he would have to “break it.” The 

nurse responded she would “break down the bed” when he was dressed and ready. 

Dr. Erickson had only been in the room two and a half to three minutes and barely had 

his glove on before the baby was delivered. Dr. Erickson did not say anything else 

during the delivery. 

The baby, Boston, was born at 8:43 a.m. and cried at birth. He weighed nine 

pounds and measured 20.5 inches in length. The Borbas allege immediately after the 

delivery, Dr. Erickson “grabbed the baby by the neck” with his left hand and “held him 

up without supporting the baby’s weight with his other hand” while cutting the umbilical 

cord, causing the baby to lose oxygen and “turn blue.” Frank described the way 
4.

Dr. Erickson was holding Boston as a “choke hold” and saw Dr. Erickson’s grip tighten, 

choking him further. Meredith saw Dr. Erickson hold Boston from behind his neck, with 

his thumb and fingers “around his neck cutting off his airway.” 

Meredith started to panic and pled with Dr. Erickson numerous times to give her 

son to the nurse. She saw Boston change colors from normal newborn coloring to “dark 

purple,” and said he was not breathing or crying; his lips were pursed, his face swollen, 

and his body “completely limp.” Meredith said Dr. Erickson moved very slowly while 

holding Boston; he was not rushing while he clamped and cut the umbilical cord and did 

not react to her pleas to hand the baby to the nurse. Meredith felt Dr. Erickson wanted 

her to suffer because he changed nothing in response to her pleas and she “was suffering, 

as well as my child.” 

Dr. Erickson held Boston in this manner for one to two minutes before handing 

him to nurses. Dr. Erickson testified he held Boston that way because it was the only 

way to hold him at the time since he was covered with vernix, which was very slippery, 

and he was not able to get ahold of Boston any other way. Boston began crying again 

within 15 to 30 seconds after being handed to the nurses. 

Boston’s newborn examination record does not reflect that he was cyanotic at or 

anytime following his birth. Dr. Erickson charted Boston’s APGAR score2 as seven at 

one minute after birth, while the nurses charted it as eight at one minute and nine at five 

minutes.3 Boston began breastfeeding shortly after birth without complication. Meredith 

and Boston were discharged home at 4:50 p.m. the day after his birth. 

2 APGAR scores measure a newborn’s breathing effort, heart rate, muscle tone, 

reflexes, and skin color.

3 Meredith did not agree with the APGAR scores, as nothing was documented about 

what happened and she did not believe it was possible for Boston to have APGAR scores 

of eight and nine. 
5.

Meredith said employees of the Medical Center were apologetic about what 

happened. At Meredith’s request, the delivery nurse said she would file an incident 

report; the delivery nurse also said she was going to file a complaint. Meredith asked the 

pediatrician and nursery nurse to conduct a thorough assessment of Boston’s head and 

neck, telling them he had been held one-handed and “strangled” during delivery. The 

pediatrician did not say anything in response to Meredith’s request and she did not have 

an opportunity to talk to him after he evaluated Boston. 

Following Boston’s birth, Meredith experienced anxiety, lack of sleep, sadness 

and nightmares, which progressively continued. She also experienced overwhelming 

sadness, difficulty bonding, sleepless nights, constant worry about her baby, anxiety, and 

panic attacks, which she did not experience with her other children. She became 

depressed and withdrew from Frank. Dr. Altman diagnosed her with postpartum 

depression in 2014, as did another doctor she saw that same year. 

Meredith’s doctor referred her to Anna Glezer, M.D., an assistant clinical 

professor at UCSF who is board certified in psychiatry and forensic psychiatry, for 

postpartum and anxiety issues. Dr. Glezer saw Meredith once in person, in April 2016. 

Dr. Glezer noted Meredith “described her second child’s birth and the subsequent 

symptoms of re-experiencing, avoidance, [and] panic with triggers,” which were 

“consistent with postpartum PTSD.” Dr. Glezer further noted Meredith’s vulnerability to 

PTSD may have been due to a prior history of childhood trauma. Dr. Glezer 

preliminarily diagnosed Meredith with postpartum PTSD based on the information 

Meredith verbally provided about her experience and symptoms. Meredith’s complaints 

also were consistent with a generalized anxiety condition. 

Meredith was concerned about Boston’s development. At six months he was not 

babbling like he should and while his language had improved, it did not progress like her 

other two children. According to Meredith, the two pediatricians who had seen Boston 

said they would not know for sure about his development until he was school age. 
6.

Meredith admitted she only had her other children to compare Boston to, but he was not 

developing within the same timeframe as his two siblings. 

I. This Lawsuit

Meredith, Frank and Boston filed a medical negligence action against Dr. Altman, 

Tenet Healthcare Corporation (Tenet), and the Medical Center in January 2015. 

Dr. Erickson subsequently replaced Dr. Altman as a defendant,4 and Gould Medical 

Group and Sutter Gould were added as Doe defendants. 

A third amended complaint was filed in January 2016, alleging causes of action 

for medical negligence and battery against all defendants. After the trial court sustained 

demurrers to the third amended complaint with leave to amend, the Borbas5filed a fourth 

amended complaint against Tenet, the Medical Center, Dr. Erickson, Sutter Gould, and 

Gould Medical Group, in May 2016, which alleged causes of action for negligent and 

intentional infliction of emotional distress. 

In the fourth amended complaint, the Borbas alleged the following. When 

Dr. Erickson delivered Boston, he “grabbed the baby by the neck and held him up 

without supporting the baby’s weight with his other hand.” The Borbas were “helpless to 

stop him,” though Frank was photographing the birth. Meredith, who was a neonatal 

intensive care nurse, “pleaded with Dr. Erickson to hand” the baby, who had “started to 

turn blue,” over to her or the nurses, but “Dr. Erickson ignored her, and casually turned to 

pick something up from his instrument table, and wipe his brow.” The Borbas “watched 

helplessly as the baby was finally handed over to the nurses because Dr. Erickson had 

caused him to stop breathing.” Boston “became cyanotic (turned blue)” after delivery, 

but “cyanosis was not notated on the Newborn Examination Record,” which was attached 

4 Dr. Altman was dismissed from the action without prejudice in March 2016. 

5 Starting with the fourth amended complaint, Boston was no longer a named 

plaintiff. 
7.

to the fourth amended complaint as an exhibit. The Borbas “were forced to watch” 

Dr. Erickson “hold their baby until he turned blue,” while Dr. Erickson “refused to stop 

holding the baby by his neck and/or give the baby to any other person, including nurses, 

who were in the room.” Dr. Erickson’s action “caused a loss of oxygen” to Boston’s 

brain, which “resulted in developmental delays and difficulties for the baby,” and the 

Borbas sustained both “serious” and “severe emotional distress” as a result of 

Dr. Erickson’s conduct. The fourth amended complaint contained clip art images 

purportedly depicting respondents’ trademark logos and a photograph allegedly of 

Dr. Erickson holding Boston after birth. 

II. The Demurrer and Motion to Strike

In May 2016, the respondents6filed a demurrer and a motion to strike with respect 

to the fourth amended complaint. In the demurrer, respondents challenged both the 

negligent and intentional infliction of emotional distress claims on grounds they failed to 

state facts sufficient to constitute causes of action and were uncertain. (Code Civ. Proc.,7

§ 430.10, subds. (e) & (f).) In the motion to strike, respondents sought, among other 

things, to strike the photograph and clip art in the complaint. The Borbas opposed both 

the demurrer and the motion. 

The trial court issued a tentative ruling overruling the demurrer as to the negligent 

infliction of emotional distress claim but sustaining it, without leave to amend, as to the 

intentional infliction of emotional distress claim. As for the motion to strike, the trial 

court intended to grant it in part and deny it in part and order the Borbas to remove the 

clip art and embedded logos, as well as language regarding intentional torts. 

6

In November 2017, Tenet and the Medical Center were dismissed from the action 

with prejudice. They are not parties to this appeal.

7 Undesignated statutory references are to the Code of Civil Procedure.
8.

A hearing was held on July 6, 2016. Following argument by counsel, the trial 

court confirmed its tentative ruling with some modifications. In its written order, the trial 

court stated it sustained the demurrer as to the intentional infliction of emotional distress 

claim without leave to amend because the complaint failed to state facts sufficient to 

constitute a cause of action and was uncertain. As for the motion to strike, the trial court 

ordered the Borbas, among other things, to remove specific intentional tort language and 

all photographs, clip art, and embedded logos. The trial court ordered the Borbas to file a 

fifth amended complaint containing one cause of action for negligent infliction of 

emotional distress. 

The Borbas subsequently filed a fifth amended complaint with a single cause of 

action for negligent infliction of emotional distress based on the same set of facts alleged 

in the fourth amended complaint, with the photograph and trademark logos removed. As 

for the elements of the claim, the Borbas alleged the following: (1) Dr. Erickson 

“performed acts” on Boston “in a negligent manner causing him injury” and “held him 

during the labor and/or delivery process, which caused him to los[e] oxygen to the brain 

and turn blue”; (2) the Borbas were present in the delivery room and aware of the injury 

as it was occurring; (3) as a result of Dr. Erickson’s conduct, the Borbas “were forced to 

endure serious emotional distress ... at being forced to watch their baby be deprived of 

oxygen immediately upon his birth,” which “[a]n ordinary, reasonable person would not 

be able to cope with,” and Meredith’s feelings were exacerbated because, as a neonatal 

nurse, she knew the consequences of Dr. Erickson’s action but was helpless to stop him; 

and (4) Dr. Erickson’s conduct was a substantial factor in causing the Borbas’ serious 

emotional distress. The Borbas further alleged Dr. Erickson was acting as either an agent 

or employee of Tenet, the Medical Center, Gould Medical Group or Sutter Gould. 

III. The Summary Judgment Motion

A. The Moving Papers
9.

Respondents moved for summary judgment or, in the alternative, summary 

adjudication, in November 2017. Respondents argued the negligent infliction of 

emotional distress claim failed as a matter of law for the following reasons: (1) neither 

parent could recover as bystanders because Dr. Erickson acted within the standard of care 

and Boston was not injured; (2) neither parent could recover as direct victims because 

Frank did not have a physician-patient relationship with Dr. Erickson, Dr. Erickson did 

not breach the standard of care, and Boston was not injured; (3) there was no causal 

connection between Meredith’s alleged emotional injury and Dr. Erickson’s conduct; and 

(4) since the Borbas could not recover against Dr. Erickson, they could not recover 

against the other respondents. 

In support of the motion, respondents submitted declarations from Jeffrey R. 

Cragun, M.D., and Richard L. Oken, M.D. Respondents also asked the trial court to take 

judicial notice of an August 2017 declaration of James Byrne, M.D., which the Medical 

Center submitted in support of its own summary judgment motion. 

Dr. Cragun, a licensed physician who is board certified in obstetrics and 

gynecology, opined all care respondents provided was within the standard of care in the 

obstetrics and gynecology community, and none of them were negligent at any time 

during Meredith’s or Boston’s care and treatment.8 In Dr. Cragun’s opinion there is no 

specific standard of care as to how an obstetrician is supposed to hold a newborn 

8

In rendering his opinion, Dr. Cragun reviewed the fifth amended complaint, 

Meredith’s and Boston’s medical records from the Medical Center, Meredith’s medical 

records from Sutter Gould, and the depositions of Meredith and Frank, as well as color 

photos marked as exhibits to Meredith’s deposition. Dr. Cragun stated it was within his 

experience, training and scope of practice to manage and care for patients undergoing 

obstetrics and gynecology treatment. He was familiar with and competent to testify to 

the standard of care for obstetrician/gynecologists, including labor, delivery and the 

monitoring of mothers and their babies before and after birth. Moreover, since he was 

board certified in obstetrics and gynecology, he was familiar with birth complications 

related to infants born with hypoxia or anoxia (decreased or absent oxygen to the brain), 

as well as such infants’ potential adverse outcomes or lack thereof. 
10.

immediately following a routine vaginal birth and prior to cutting the umbilical cord. 

Dr. Cragun explained Boston “was covered, as many infants are, with vernix caseosa, a 

waxy slippery substance composed primarily of sebum,” and noted that according to 

Frank’s testimony, Dr. Erickson held Boston no longer than one to two minutes from the 

time of spontaneous vaginal birth until he cut the umbilical cord, when he handed Boston 

to the nursing staff. Dr. Cragun opined Dr. Erickson’s action in “safely holding” Boston 

immediately following the “routine spontaneous vaginal delivery” until he handed Boston 

to the nursing staff was “not below the standard of care.” 

Dr. Cragun noted Boston’s APGAR scores were within normal limits for a healthy 

newborn. In addition, the medical records confirmed there were no fetal or neonatal 

complications, no resuscitation efforts were made, and neither pulse oximetry nor 

supportive ventilation was needed or provided. Based on these observations, Dr. Cragun 

opined Boston could not have been injured by Dr. Erickson holding him as described for 

one to two minutes following birth, as that was an insufficient length of time to cause any 

brain injury or developmental delays due to any alleged hypoxia or anoxia as the Borbas’ 

insinuated occurred during this limited timeframe. Moreover, there is no evidence in the 

medical records to indicate Boston had any abnormal vital signs or other clinical signs or 

symptoms consistent with physical or brain injury, and no indication of concern by 

Dr. Erickson or any healthcare provider, including the pediatrician who examined Boston 

prior to discharge or the nursing staff. 

Dr. Oken, a licensed physician who is board certified in pediatric medicine, opined 

to a reasonable degree of medical certainty that: (1) no act or omission during 

Dr. Erickson’s course of care caused “any of plaintiffs’ claimed injuries”; (2) the way 

Dr. Erickson held Boston, which lasted no longer than one to two minutes, “was an 

insufficient length of time to cause any brain injury or developmental delays” as a result 

of any alleged hypoxia or anoxia as the Borbas insinuated occurred during this limited

timeframe; and (3) Boston “does not have any evidence of physical injury, brain injury, 
11.

developmental injury or delays, or any other injury caused from any care rendered by 

Dr. Erickson.” His opinion was based on a number of facts derived from the medical 

records and the depositions of the Borbas and a nurse practitioner, including: 

(1) Boston’s vital signs, examinations, evaluations, and assessments at the Medical 

Center, which were “within normal limits from the time of birth to discharge”; 

(2) Boston’s two- and three-year well child examinations, which were “within normal 

limits”; and (3) the nurse practitioner’s examination of Boston in January 2017, which 

“raised no concern for developmental or speech delays.”9 

Dr. Byrne, a licensed physician who is board certified in obstetrics and 

gynecology, opined all the obstetrical care and treatment the nursing staff and 

Dr. Erickson rendered to Meredith and Boston were within the applicable standard of 

care, and no act or omission “caused, to a reasonable medical probability,” any of the 

claimed injuries. While “[t]here is no specific ‘standard of care’ as to how an OB/GYN 

doctor is supposed to hold the newborn baby immediately following a routine vaginal 

birth and prior to cutting the umbilical cord as depicted in the photographs and as 

described by the parents,” Dr. Erickson’s actions in holding Boston “immediately 

following his routine spontaneous vaginal delivery until handing the baby over to the 

[Medical Center] nursing staff were not below the standard of care.” Finally, Dr. Byrne 

opined Boston “does not have any evidence of physical injury, brain injury, 

developmental injury or delays, or any other injury caused from any obstetrical care 

rendered by” the Medical Center or Dr. Erickson. 

9 Dr. Oken reviewed the Medical Center’s records pertaining to Meredith and 

Boston, as well as Boston’s medical records from UCSF Medical Center, Oak Valley 

Hospital and pediatrician Dr. Cajigas. He also reviewed the deposition transcripts of 

Meredith and Frank, and Sheila Hernandez-Lee, N.P., who examined Boston in January 

2017, as well as color photos marked as exhibits to Meredith’s deposition. 
12.

The motion originally was set to be heard on February 8, 2018, with trial set for 

April 24, 2018, but was later reset for August 16, 2018, with trial scheduled for 

October 30, 2018. 

B. The Borbas’ Motion to Compel

In April 2018, the Borbas filed a motion to compel further responses from 

Dr. Erickson to their request for production of documents. As pertinent here, the request, 

which the Borbas propounded on December 6, 2017, asked for documents related to 

communications with the experts who submitted declarations in support of the summary 

judgment motion, namely, Drs. Cragun and Oken. Dr. Erickson objected to production of 

these documents based on the attorney-client and attorney work product privileges, 

explaining that since expert discovery had not occurred, Drs. Cragun and Oken remained 

consultants and these privileges therefore applied. 

The Borbas argued Dr. Erickson improperly relied on the attorney-client and work 

product privileges because Dr. Erickson made Drs. Cragun and Oken testifying experts 

by submitting their declarations in support of the summary judgment motion; therefore,

privilege or work product objections were invalid. The Borbas asserted these doctors did 

not review all available information, including Dr. Erickson’s deposition and exhibits, as 

well as Dr. Erickson’s physician notes regarding Boston’s birth, which made “their 

declarations lacking in veracity and based upon untenable facts.” If confronted with 

certain admissions in Dr. Erickson’s deposition and written discovery responses, the 

doctors “would at least question, if not reevaluate, their own findings.” The Borbas 

claimed the requested documents were required so they could depose these doctors to 

properly oppose the summary judgment motion. The Borbas sought monetary sanctions 

in connection with the motion. 
13.

Dr. Erickson opposed the motion, arguing the Borbas were prohibited from 

conducting expert witness discovery until the expert consultants were designated and 

disclosed as expert witnesses for trial as provided in section 2034.210. He further argued 

the Borbas had not met their burden of showing they were entitled to conduct expert 

discovery for purposes of opposing the summary judgment motion, as provided in 

St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531 (St. Mary). 

Finally, Dr. Erickson argued sanctions were inappropriate because the Borbas’ motion 

was meritless and, in any event, there was substantial justification for his positions. 

The Borbas submitted a two-page reply, in which they argued they were entitled to 

“discovery concerning these experts whose declarations are the basis for defendants’ 

[summary judgment motion],” in order “to demonstrate there are [] triable issues of fact 

requiring denial of the motion.” 

The trial court adopted its tentative ruling denying the motion to compel when the 

tentative ruling was not contested. In its May 2018 order, the trial court stated it 

determined the Borbas were not entitled to further responses as they did not present any 

“objective facts that Dr. Cragun or Dr. Oken’s ‘opinions’ are based on incorrect facts—

which was the deciding factor in St. Mary[].” Instead, “[a]t most” the Borbas contended 

the experts “did not review everything they ‘should have reviewed’ ” in rendering their 

opinions, but they did not argue the experts’ assumptions about the facts of the labor and 

delivery were wrong or the evidence they claim the experts should have reviewed would 

actually refute the assumptions made in their declarations. To the contrary, there did not 

appear to be any dispute as to what happened during the labor and delivery; rather, the 

dispute was directed at whether Dr. Erickson’s actions were within the medical standard 

of care. 

C. The Opposition to the Summary Judgment Motion

The Borbas filed their opposition to the summary judgment motion on August 2, 

2018. The Borbas argued summary judgment must be denied because the evidence 
14.

established: (1) Boston was injured because he became cyanotic as a result of 

Dr. Erickson holding him “solely by the neck”; (2) Dr. Erickson breached his duty of

care to Boston by holding him by the neck; (3) Meredith was entitled to recover as a 

direct victim of Dr. Erickson’s negligence; (4) Meredith and Frank both were entitled to 

recover under a bystander theory of liability because they were present during the 

delivery and witnessed Dr. Erickson injuring Boston; and (5) Meredith’s emotional 

injuries were causally attributed to watching Boston turn blue while Dr. Erickson was 

holding him by the neck as her pleas to stop went unheeded. 

The Borbas submitted the declaration of Kristeen Klaas, R.N., in support of their 

opposition. Klaas had been a registered nurse since 1978 and worked as a charge nurse 

in the operating room at San Leondro Hospital. She had been certified in advanced and 

basic cardiac life support since 1978. She had previous experience as a respiratory 

therapy technician and had worked in an “ICU Cardiopulmonary Unit” for 12 years, a 

“GI lab” for 10 years, and a “PACU”10 for 15 years. She was “CPAN Certified,” went to 

“Operating Room School,” and obtained a “Pediatric Advanced Life Support (‘PALS’) 

certification.” She had worked in the operating room for 15 years. Although she did not 

state she had any training or experience in labor and delivery or neonatal medicine, she 

claimed to be “familiar with the standards of care owed to all patients, including 

delivering mothers and their babies, upon admission to a hospital, as well as throughout 

the labor and delivery process.” She also claimed to be “familiar with the standards of 

care in how to hold and assess newborns,” and “how injuries and patient complaints 

should be charted.” 

Klaas had been consulted as an expert witness for the Borbas. She was asked to 

evaluate the care Dr. Erickson rendered to Meredith and Boston, surrounding the 

circumstances of the labor and delivery, and formulate expert opinions regarding his 

10 According to respondents, a PACU is a post-anesthesia care unit. 
15.

compliance with the standard of care. Klaas stated that based on her over 30 years of 

experience working as a registered nurse in acute care hospitals, she was “knowledgeable 

about the standards of care for doctors, nurses, and the ancillary staff working with them 

under the circumstances pertinent to the litigation.” 

Based on her education, training and experience in the field of acute hospital care 

nursing and her review of the medical records and depositions of the Borbas and 

Dr. Erickson, Klaas opined the following: (1) Dr. Erickson breached the standard of care 

owed Boston by holding him around the neck for one to two minutes following delivery; 

(2) when Dr. Erickson held Boston by the neck, Boston became cyanotic, defined as 

bluish or purplish discoloration of the skin or mucous membranes due to tissues near the 

skin surface having low oxygen saturation, which is a definite sign that respiration is 

being blocked; (3) there is no medical reason to hold a newborn by the neck during 

delivery, particularly for one to two minutes “with the fingers grasping almost entirely 

around the neck,” which can cause cyanosis and block blood flow from the carotid artery 

to the brain; and (4) in her medical opinion, it was below the standard of care for a 

doctor, nurse, or any staff member participating in a labor and delivery to hold a newborn 

by the neck for one to two minutes. 

Klaas further opined Dr. Erickson breached the standard of care owed Boston and 

Meredith by failing to record in the medical records the following: (1) complete APGAR 

score information; (2) that he held Boston solely by the neck for one to two minutes after 

delivery; and (3) Meredith’s complaints. In Klaas’s opinion, an APGAR score of seven 

is outside the normal limits and concerning because it indicates the newborn is 

experiencing problems or injuries in one or more categories. 

The Borbas also submitted photographs of Boston’s delivery taken by Boston’s 

grandmother, Lisa Evans, who was present during the delivery. Evans declared that one 

of the photographs showed Dr. Erickson holding Boston solely by the neck during his 

delivery. 
16.

The Borbas filed a written objection to respondents’ request for judicial notice of 

the declaration of Dr. Byrne, arguing it was not the proper subject of judicial notice. 

They also filed a “Separate Statement of Additional Material Facts” (unnecessary 

capitalization omitted), which contained 84 facts they contended established genuine 

issues of material fact existed that precluded summary judgment or adjudication. 

D. Respondents’ Reply

In their reply, respondents argued the Borbas failed to submit admissible expert 

opinion on the question of whether there had been a breach of the standard of care. 

Specifically, they argued Klaas was not qualified to opine as to the standard of care of a 

delivering board-certified obstetrician/gynecologist and whether there was a breach of 

that standard; therefore, her declaration was insufficient to counter the declarations of the 

two board-certified physicians. Respondents also argued that because Klaas failed to 

opine about causation as to the Borbas’ alleged injuries, the opinions of Drs. Oken and 

Cragun that Dr. Erickson did not cause any of the Borbas’ alleged injuries must be 

accepted as conclusive. Finally, respondents argued Klaas was not qualified to opine 

about, or diagnose, an injury to Boston. 

Respondents filed written objections to Klaas’s declaration. Respondents first 

argued the declaration was neither competent nor admissible under Evidence Code 

section 720 because Klaas was not qualified to render the opinions stated in her 

declaration. Respondents asserted proof of the breach of the standard of care of a 

healthcare provider, as well as proof the injury was caused by negligence, required 

testimony from medical experts, but Klaas was not qualified to render expert opinions on 

either issue as to the medical care and treatment Dr. Erickson provided. Respondents 

argued that while Klaas may offer expert testimony regarding the standard of practice in 

the field of nursing, because she was not a physician or specialist, her statements 
17.

regarding the standard of care applicable to physician specialists were inadmissible 

because they were conclusory, ambiguous, and unintelligible. 

Respondents also objected to Klaas’s declaration on the ground it lacked 

foundation because it did not establish a sufficient basis for her conclusory opinions or 

what she relied on in forming them. Respondents argued her declaration failed to state 

with particularity the matters upon which her opinions were based, included irrelevant 

and inadmissible opinions, and was speculative on its face. 

E. The Trial Court’s Ruling

The trial court issued a tentative ruling to grant the motion, explaining there 

was no question the case involved an issue of medical negligence with respect to 

Dr. Erickson’s actions and any alleged resulting injury Boston suffered. Respondents’ 

moving pleadings, including the expert declarations of Drs. Cragun and Oken, 

demonstrated there was no triable dispute of material fact that Dr. Erickson’s actions in 

holding the Borbas’ son around the neck without supporting the rest of his body fell 

within the community standard of care, and no act or omission by Dr. Erickson caused 

Boston injury, as that term is legally defined. While the Borbas attempted to dispute 

these expert opinions with Klaas’s declaration, the trial court sustained respondents’ 

objections to her declaration, as her opinion of Dr. Erickson’s actions could not create a 

conflict sufficient to prevent the motion from being granted. The trial court noted it need 

not judge whether Dr. Erickson’s bedside manner was appropriate, as that issue was not 

properly before it. 

The hearing on the motion was held on August 16, 2018. After noting the issues 

were whether a negligent infliction of emotional distress claim sounded in malpractice or 

ordinary negligence, and whether Klaas had the background and training to qualify as an 

expert so she could opine on Dr. Erickson’s behavior, the trial court stated it tentatively 

believed expert testimony was required and Klaas’s declaration did not create a triable 

issue because she is not an obstetrician/gynecologist. The trial court added it sustained 
18.

respondents’ objections on all grounds. The Borbas’ attorney argued injury was not 

needed for a negligent infliction claim, Klaas qualified as an expert due to her many years 

of experience, and the Borbas were not claiming professional negligence. The Borbas’ 

attorney asserted the jury should decide whether ordinary versus professional negligence 

applied. The trial court, however, believed it had to decide that issue. The attorney 

responded that was the trial court’s purview, but expert testimony was unnecessary 

because they pled all the facts needed for a “negligent claim,” and even if expert 

testimony were required, Klaas “is an expert having seen so many births.” 

The Borbas’ attorney requested a continuance under section 437c, subdivision (h), 

should the trial court confirm the tentative ruling, to allow them to present an “OB/GYN 

declaration or other evidence.” The attorney stated the request was not made earlier 

because they did not feel it was necessary given Klaas’s many years of experience. 

While the Borbas’ attorney believed the request was timely, respondents’ attorney 

disagreed and asserted the Borbas had every opportunity to conduct discovery, as the 

motion had been pending for 10 months, but they chose not to. 

The trial court stated it was going to confirm its tentative ruling in its entirety and 

grant the motion; in addition, the trial court denied the request for a continuance as 

untimely. The trial court subsequently issued a written order granting the summary 

judgment motion, denying the request for a continuance, sustaining respondents’ 

objections to evidence in their entirety, and ordering judgment be entered in respondents’ 

favor. Judgment later was entered in respondents’ favor, who were awarded their costs of 

suit. 

DISCUSSION

I. The Summary Judgment Motion

A. Standard of Review

Summary judgment is proper only if there is no triable issue of material fact and 

the moving party is entitled to judgment as a matter of law. (§ 437c, subds. (c), (f).) As 
19.

moving defendants, respondents had the initial burden to show the negligent infliction of 

emotional distress claim was without merit by showing one or more elements cannot be 

established. (§ 437c, subd. (p)(2).) Once respondents met their initial burden, the burden 

shifted to the Borbas to produce evidence demonstrating the existence of a triable issue of 

material fact. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the 

Borbas were unable to do so, respondents were entitled to summary judgment as a matter 

of law and the motion was properly granted. (Kincaid v. Kincaid (2011) 197 Cal.App.4th 

75, 82.)

On appeal, our task is to independently determine whether a triable issue of 

material fact exists and whether the moving party is entitled to summary judgment as a 

matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) We consider all 

the evidence set forth in the moving and opposing papers, except that as to which 

objections have been made and sustained. (§ 437c, subd. (c).) “We independently 

review the parties’ papers supporting and opposing the motion, using the same method of 

analysis as the trial court. Essentially, we assume the role of the trial court and apply the 

same rules and standards.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) In so 

doing, we liberally construe the opposing party’s evidence, strictly construe the moving 

party’s evidence, and resolve all doubts in favor of the opposing party. (Johnson v. 

American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 768.) “There is a triable issue of material fact if, and only if, the 

evidence would allow a reasonable trier of fact to find the underlying fact in favor of the 

party opposing the motion in accordance with the applicable standard of proof.” (Aguilar

v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)

B. Negligent Infliction of Emotional Distress

“Negligent infliction of emotional distress is a form of the tort of negligence, to 

which the elements of duty, breach of duty, causation and damages apply. The existence 

of a duty is a question of law.” (Huggins v. Longs Drug Stores California, Inc. (1993) 
20.

6 Cal.4th 124, 129 (Huggins).) There are two theories of recovery for negligent infliction 

of emotional distress—the bystander theory and the direct victim theory; the distinction 

between the two is found in the source of the duty the defendant owed the plaintiff. 

(Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071, 1072 (Burgess).) As our 

Supreme Court has explained: “ ‘Bystander’ claims are typically based on breach of a 

duty owed to the public in general [citation],[11] whereas a right to recover for emotional 

distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the 

defendant or imposed on the defendant as a matter of law, or that arises out of the 

defendant’s preexisting relationship with the plaintiff.” (Huggins, at pp. 129–130.)

A mother may recover damages for emotional distress as a direct victim of 

medical malpractice inflicted upon her child during childbirth. (Huggins, supra,

6 Cal.4th at p. 131, citing Burgess, supra, 2 Cal.4th 1064.) In that situation, the 

obstetrician owes a duty of care to both the mother and her fetus arising from the 

physician-patient relationship, and “[a]ny negligence during delivery which causes injury 

to the fetus and resultant emotional anguish to the mother ... breaches a duty owed 

directly to the mother.” (Burgess, supra, 2 Cal.4th at pp. 1075–1076.) 

In such a case, the mother’s “claim for emotional distress damages may simply be 

viewed as an ordinary professional malpractice claim, which seeks as an element of 

damage compensation for her serious emotional distress. The elements of a claim for 

professional negligence incorporate a specific standard of care into the elements of a 

negligence claim. ‘The elements of a cause of action in tort for professional negligence 

11 As our Supreme Court explained in Burgess, bystander cases “ ‘arise in the 

context of physical injury or emotional distress caused by the negligent conduct of a 

defendant with whom the plaintiff had no preexisting relationship, and to whom the 

defendant had not previously assumed a duty of care beyond that owed to the public in 

general.’ [Citation.] In other words, bystander liability is premised upon a defendant’s 

violation of a duty not to negligently cause emotional distress to people who observe 

conduct which causes harm to another.” (Burgess, supra, 2 Cal.4th at pp. 1072–1073.)
21.

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) 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.’ ” (Burgess,

supra, 2 Cal.4th at p. 1077.) 

When the plaintiff is not the defendant’s patient, however, courts have not 

extended the direct victim cause of action to emotional distress derived solely from 

reaction to another’s injury. (Huggins, supra, 6 Cal.4th at p. 131.) As our Supreme 

Court noted in Burgess, “the physician-patient relationship critical to a mother’s cause of 

action is almost always absent in a father’s claim” for negligent infliction of emotional 

distress resulting from injuries to his child during birth; therefore, it “appears that a father 

must meet the criteria” for bystander recovery to state a viable claim. (Burgess, supra,

2 Cal.4th at p. 1078, fn. 8.) In that situation, recovery of emotional distress damages is 

allowed “ ‘only if the plaintiff: (1) is closely related to the injury victim, (2) is present at 

the scene of the injury-producing event at the time it occurs and is then aware that it is 

causing injury to the victim and (3) as a result suffers emotional distress beyond that 

which would be anticipated in a disinterested witness.’ ” (Id. at p. 1073, citing Thing v. 

La Chusa (1989) 48 Cal.3d 644, 647.) 

To recover as a bystander, there must be negligent conduct by the defendant that 

caused injury to the victim. (Holliday v. Jones (1989) 215 Cal.App.3d 102, 111 [to 

recover as a bystander, the plaintiff must “personally witness a negligently caused 

physical injury to a closely related primary victim”]; CACI No. 1621 [instruction on 

essential factual elements of negligence claim seeking recovery of damages for emotional 

distress as a bystander; first element requires the plaintiff to prove the defendant 

negligently caused injury to, or death of, the victim].)

C. Respondents Met Their Initial Burden
22.

In their summary judgment motion, respondents contended the Borbas could not 

establish three elements of their negligent infliction of emotional distress claim: 

(1) breach of the standard of care; (2) injury to Boston; and (2) causation. Specifically, 

respondents argued the expert declarations of Drs. Cragun and Oken established 

Dr. Erickson did not violate the standard of care and there was no causal relationship 

between his actions and any alleged injury to Meredith or Boston. Based on this, 

respondents argued neither Meredith nor Frank could recover as a direct victim—Frank 

because he did not have a preexisting relationship with Dr. Erickson and Meredith 

because Dr. Erickson was not negligent, Boston was not injured, and any emotional 

distress she experienced was not causally connected to Dr. Erickson. Respondents 

argued the Borbas could not recover as bystanders, since Dr. Erickson did not commit a 

negligent act and Boston was not injured. 

As we set out above, both the direct victim and bystander theories require a 

showing that the defendant breached his or her duty and caused injury to the victim, 

namely, Boston. Since the Borbas are suing for emotional distress resulting from 

Dr. Erickson’s provision of services as an obstetrician during Boston’s delivery, his duty 

must be measured by the standard of care for professionals, namely, “ ‘the duty of the 

professional to use such skill, prudence and diligence as other members of his profession 

commonly possess and exercise.’ ” (Burgess, supra, 2 Cal.4th at p. 1077.) This is 

equally true for recovery under the bystander theory, since the Borbas must show 

Dr. Erickson negligently caused injury to Boston. Since Dr. Erickson is a medical 

specialist, his duty was to use the skill, prudence, and diligence commonly possessed and 

exercised by obstetricians. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 

(Lattimore).)12

12 The Borbas contend in their reply brief that because they alleged Dr. Erickson 

“breached the duty of care owed by any medical professional who is present during labor 

and delivery,” the applicable standard of care is that of a medical professional. In making 
23.

The standard of care “can only be proved by expert testimony, unless the 

circumstances are such that the required conduct is within the layperson’s common 

knowledge.” (Lattimore, supra, 239 Cal.App.4th at p. 968.) Thus, where, as here, the 

plaintiff claims negligence in a medical context, the plaintiff must present evidence from 

an expert that the defendant breached his or her duty and the breach caused the injury to 

the plaintiff. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 (Powell).) 

Here, respondents presented evidence that Dr. Erickson did not breach the 

standard of care when he held Boston solely by the neck immediately after his delivery. 

While Drs. Cragun and Byrne stated there was no specific standard of care as to how an 

obstetrician should hold a newborn immediately following a routine vaginal birth and 

prior to cutting the umbilical cord, they opined it was not below the standard of care for 

Dr. Erickson to hold Boston for one to two minutes between those two events as depicted 

in the photographs and described by the parents. Drs. Cragun, Oken and Byrne each 

opined Dr. Erickson could not have injured Boston by holding him as described for one 

to two minutes following birth, as that was an insufficient length of time to cause brain 

injury or developmental delay. 

This evidence was sufficient to show the Borbas could not establish necessary 

elements of their negligent infliction of emotional distress claim, namely, breach of the 

standard of care and injury to Boston. (See Powell, supra, 151 Cal.App.4th at p. 123 [a 

defendant who supports his summary judgment motion with expert declarations that his 

this argument, however, the Borbas cite to the superseded fourth amended complaint. 

The operative fifth amended complaint does not contain any such allegation. Moreover, 

since Dr. Erickson’s duty derives from his provision of medical services as an 

obstetrician, Dr. Erickson was required to use the skill, prudence, and diligence possessed 

and exercised by obstetricians. (Lattimore, supra, 239 Cal.App.4th at p. 968.) 
24.

conduct fell within the community standard of care, “ ‘ “is entitled to summary judgment 

unless the plaintiff comes forward with conflicting expert evidence” ’ ”].)13

D. The Borbas Did Not Create a Triable Issue of Material Fact

Since respondents made a prima facie case the Borbas would not be able to prove 

breach or injury to Boston, the burden shifted to the Borbas to produce evidence that 

would create a triable issue of fact on these issues. As we have stated, expert testimony 

is required to establish the applicable standard of care, breach, and causation. Like 

respondents, the Borbas were required to present expert opinions in their opposition in 

order to create triable issues of fact.

In support of their opposition, the Borbas only provided Klaas’s declaration. 

Klaas identified herself as a registered nurse with extensive experience in acute care 

hospitals, but with no apparent training or experience in labor and delivery or neonatal 

medicine. Klaas nevertheless stated she was familiar with the standards of care owed 

delivering mothers and their babies throughout the labor and delivery process, as well as 

the standard of care on how to hold and assess newborns. Klaas opined Dr. Erickson 

breached the standard of care owed Boston by holding him around the neck for one to 

two minutes following delivery, which caused him to become cyanotic, and there was no 

medical reason to hold a newborn that way because it can cause cyanosis and block blood 

flow from the carotid artery to the brain. In Klaas’s medical opinion, it fell below the 

standard of care for a doctor, nurse, or any staff member participating in a patient’s labor 

and delivery to hold a newborn by the neck for one to two minutes. 

13 While the Borbas assert respondents failed to meet their initial burden, they do not 

support their claim with any reasoned argument. As such, we treat the issue as forfeited. 

(Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [“[w]hen an 

appellant asserts a point but fails to support it with reasoned argument and citations to 

authority, we treat the point as forfeited.”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each 

point must be separately headed and supported by argument and authority if available].)
25.

Respondents objected to Klaas’s declaration on the grounds it was not competent 

or admissible under Evidence Code section 720 because Klaas was not qualified to render 

the opinions stated therein and the declaration lacked foundation. The trial court 

sustained these objections. On appeal, the Borbas argue the trial court improperly 

weighed the evidence and determined respondents’ experts were more credible than their 

expert, Klaas. Although summary judgment rulings are reviewed de novo, we review the 

trial court’s evidentiary rulings for abuse of discretion. (Powell, supra, 151 Cal.App.4th 

at p. 122; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)

A party opposing a summary judgment motion may use an expert’s declaration to 

raise a triable issue of fact “provided the requirements for admissibility are established as 

if the expert were testifying at trial.” (Towns v. Davidson (2007) 147 Cal.App.4th 461, 

472.) The question of whether a witness qualifies as an expert is ordinarily a matter 

addressed to the sound discretion of the trial court. (Brown v. Colm (1974) 11 Cal.3d 

639, 646–647.) The trial court abuses its discretion “if the witness has disclosed 

sufficient knowledge of the subject to entitle his opinion to go before the jury. [Citation.] 

Indeed, the exclusion of the sole expert relied upon by a party because of an erroneous 

view of his qualifications is, in a case where expert testimony is essential, an abuse of 

discretion as a matter of law requiring reversal.” (Id. at p. 647.)

In determining a witness’s qualifications to render expert opinion testimony, the 

test is whether the witness “ ‘has special knowledge, skill, experience, training, or 

education sufficient to qualify him as an expert on the subject to which his testimony 

relates.’ ” (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701, 

quoting Evid. Code, § 720, subd. (a).) When the witness shows sufficient knowledge of 

the subject to establish the witness’s testimony would likely help the jury in its search for 

the truth, the question of the degree of the witness’s knowledge goes more to the 

testimony’s weight than its admissibility. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38, 

overruled on another point in Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 
26.

543; Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1443.) When 

considering the declarations of the parties’ experts on summary judgment, we liberally 

construe the declarations of the plaintiff’s experts and resolve any doubts as to the 

propriety of granting the motion in favor of the plaintiff. (Powell, supra, 151 

Cal.App.4th at pp. 125–126.)

Even liberally construing Klaas’s declaration, it is insufficient to create a triable 

issue of fact because she failed to state facts to establish foundation for her expertise to 

provide opinions on the standard of care and whether Boston was injured. To establish 

her authority to provide an opinion regarding Dr. Erickson’s medical negligence and any 

resulting injury to Boston, Klaas’s declaration must contain facts showing she had the 

training, experience, or necessary skill to render an opinion regarding obstetrical and 

neonatal medicine. Although Klaas was a registered nurse with extensive experience in 

acute care hospitals, she did not state she had any training or experience in labor and 

delivery or neonatal medicine. For this reason, her general statements that she was 

familiar with the standards of care owed delivering mothers and their babies, the standard 

of care in how to hold and assess newborns, and the standards of care for doctors under 

the circumstances pertinent to this litigation, are conclusory and the declaration was of no 

evidentiary value on the questions of negligence or injury. 

While respondents contend that only a physician may render an opinion on the 

standard of care of another physician, the Borbas assert that is not the case and the only 

question was whether Klaas’s testimony was likely to assist the trier of fact. We agree 

that, depending on the facts of the case and the specific issues that require expert 

testimony, someone other than a medical doctor can be an expert on medical issues. 

(People v. Catlin (2001) 26 Cal.4th 81, 131–132 [“[q]ualifications other than a license to 

practice medicine may serve to qualify a witness to give a medical opinion”], overruled 

on another ground in People v. Nelson (2008) 43 Cal.4th 1242, 1253–1256.) 

Nonetheless, the person making the expert declaration or testifying as an expert must 
27.

show they are qualified to provide an opinion on the subject matter. Klaas’s declaration 

is deficient in this regard: she lacks the training and experience to provide an opinion 

regarding the standard of care an obstetrician would use when delivering a newborn 

following a routine vaginal birth and before cutting the umbilical cord, and whether 

holding a newborn by the neck for one to two minutes would cause injury.

The Borbas argue the only reason the trial court excluded Klaas’s declaration was 

because she was a registered nurse, which was not a reasonable basis to exclude her 

testimony; therefore, the trial court’s exclusion of their only expert witness clearly 

constituted an abuse of direction warranting reversal. This was not the only basis for the 

trial court’s exclusion, however, as the trial court sustained respondents’ objections to 

Klaas’s declaration based not only on her qualifications, but also on the ground the 

declaration lacked foundation because it did not establish a sufficient basis for her 

opinions or what she relied on in forming them. Even if it was the only basis, we review 

results, not reasons. (Green v. Superior Court (1985) 40 Cal.3d 126, 138 [it is a “settled 

principle of appellate review that a correct decision of the trial court must be affirmed on 

appeal even if it is based on erroneous reasoning”]; D’Amico v. Board of Medical 

Examiners (1974) 11 Cal.3d 1, 19.) As we have explained, the trial court did not abuse 

its discretion in excluding Klaas’s declaration.

Without Klaas’s declaration, the Borbas did not have any expert testimony on the 

issues of standard of care or injury. Accordingly, they have not presented a triable issue 

of material fact on their claims for negligent infliction of emotional distress by either 

direct victims or bystanders.

The Borbas argue for the first time on appeal in their reply brief that expert 

testimony on the standard of care is not required because it is common knowledge not to 

hold a newborn solely by the neck.

14

 It is true that the testimony of qualified experts is 

14 We note that we are not obliged to consider arguments or theories that the Borbas 

did not advance in the trial court. (DiCola v. White Brothers Performance Products, Inc. 
28.

not necessary if “the conduct required by the particular circumstances is within the 

common knowledge of the layman.” (Flowers v. Torrance Memorial Hospital Medica 

Center (1994) 8 Cal.4th 992, 1001.) “The ‘common knowledge’ exception is principally 

limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., 

when a layperson ‘is able to say as a matter of common knowledge and observation that 

the consequences of professional treatment were not such as ordinarily would have 

followed if due care had been exercised.’ [Citations.] The classic example, of course, is 

the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.] 

Otherwise, ‘ “expert evidence is conclusive and cannot be disregarded.” ’ ” (Ibid., fn. 

omitted.)

Here, the Borbas claim Dr. Erickson was negligent because he held Boston solely 

from the back of the neck. The Borbas assert it is common knowledge not to hold a 

newborn that way, since any teenage babysitter knows this is an unacceptable way to 

hold a baby and Medical Center registered nurse Shelley Neal testified she did not recall 

being taught in school not to use a newborn’s neck as the sole support. But here, the 

purportedly negligent conduct occurred, not when a teenager is babysitting a newborn or 

a nurse is handling a baby in the hospital nursery, but rather during a routine vaginal 

delivery, when Dr. Erickson was cutting the umbilical cord. The proper way to handle a 

baby during delivery is not a matter within a layperson’s common knowledge. Therefore, 

(2008) 158 Cal.App.4th 666, 676 [the rule that an argument or theory will not be 

considered if raised for the first time on appeal applied to the appellate review of 

summary judgments; therefore, “ ‘possible theories that were not fully developed or 

factually presented to the trial court cannot create a “triable issue” on appeal’ ”].) We 

also need not consider this argument because appellate courts have concluded issues first 

raised in a reply brief will not be considered absent a showing of good cause for delay. 

(Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 

1181, fn. 3 [“Consistent with well-established authority, absent justification for failing to 

present an argument earlier, we will not consider an issue raised for the first time in a 

reply brief.”].)
29.

the Borbas cannot rely on the common knowledge exception as a defense against 

summary judgment.

The Borbas also contend for the first time on appeal in their reply brief that in 

addition to Klaas, they presented expert testimony from three other “qualified experts,” 

namely, Dr. Erickson, nurse Neal, and Meredith. They assert that testimony from any 

one of these individuals was sufficient to defeat summary judgment. Since they failed to 

raise this issue in the trial court and only asserted it for the first time in their reply brief, 

we need not consider it. Moreover, none of these individuals submitted a declaration 

establishing their credentials as experts and the deposition excerpts that the Borbas 

submitted in opposition to their motion do not establish this.15

We understand people in the Borbas’ situation might feel distressed. The standard 

of care when delivering a baby, however, is to be measured by the standard of care of a 

medical professional. Respondents established that Dr. Erickson did not breach the 

standard of care through the declarations of their medical doctors, shifting the burden of 

producing evidence to create a triable issue of fact to the Borbas. Because Klaas’s 

declaration was insufficient to create a triable issue of material fact and the Borbas 

provided no other evidence of medical negligence, we have no choice but to affirm the 

15 None of the testimony the Borbas cite establishes that any of these individuals 

offered an opinion on the standard of care applicable to this case and breach of that 

standard. That Dr. Erickson admitted holding Boston solely by the neck does not 

establish the applicable standard of care or breach of that standard. While the Borbas cite 

Dr. Erickson’s written discovery responses could be used to establish negligence, those 

responses were not presented with respect to the summary judgment motion, but rather 

the motion to compel. While Neal, who had been a registered nurse since 1992 and 

worked at the Medical Center as a postpartum nurse, testified she did not recall ever 

seeing a physician hold a baby by the neck during delivery and she had never held a baby 

that way, she did not testify it was below the standard of care for an obstetrician to hold a 

baby solely by the neck under the circumstances of this case. Finally, Meredith’s 

observations of Dr. Erickson’s conduct and its effect on Boston do not establish that 

Dr. Erickson acted below the standard of care.
30.

trial court’s grant of summary judgment on the ground the Borbas cannot prove breach of 

the standard of care. Accordingly, we do not decide the other grounds respondents raised 

to support the motion, such as whether the Borbas had contemporaneous awareness of an 

injury-producing event because Dr. Erickson did not injure Boston.

II. The Demurrer

The Borbas contend the trial court erred when it sustained respondents’ demurrer 

to their intentional infliction of emotional distress claim alleged in the fourth amended 

complaint.16

Intentional infliction of emotional distress requires: (1) extreme and outrageous 

conduct by the defendant; (2) that the defendant intended to cause, or recklessly 

disregarded the probability of causing, emotional distress; (3) severe emotional distress; 

and (4) actual and proximate causation of emotional distress by the defendant’s 

outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; Nally v. Grace 

Community Church (1988) 47 Cal.3d 278, 300.) “A defendant’s conduct is ‘outrageous’ 

when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized 

community.’ ” ’ ” (Hughes v. Pair, at pp. 1050–1051.)

In their intentional infliction of emotional distress claim, the Borbas alleged 

Dr. Erickson’s conduct of holding a baby by the neck with such force that he turned blue 

was “conduct outside the bounds of conduct tolerated by any reasonable member of 

society,” “so extreme in degree that it exceeded all possible bounds of decency,” and 

“atrocious and utterly intolerable in any civilized community.” They specifically alleged 

16 The Borbas also mention that the trial court granted respondents’ motion to strike 

the photo of Dr. Erickson “choking” Boston that was published in the fourth amended 

complaint. To the extent the Borbas intend to argue the trial court erred in granting the 

motion to strike, they do not make any reasoned argument or cite to any authority to 

support any such claim. As such, we treat the issue as forfeited. (Tellez v. Rich Voss 

Trucking, Inc., supra, 240 Cal.App.4th at p. 1066; Cal. Rules of Court, rule 

8.204(a)(1)(B).) 
31.

there was “no excuse for a medical professional to grasp a baby by the neck, in anger 

or otherwise, depriving it of oxygen during its birth.” They further alleged: 

(1) Dr. Erickson “acted with reckless disregard of the probability” that they “would 

suffer emotional distress, knowing that [they] were present when the conduct occurred”; 

(2) they “suffered severe emotional distress ... at being forced to watch their baby be 

deprived of oxygen immediately upon his birth”; and (3) Dr. Erickson’s “conduct was a 

substantial factor in causing this severe emotional distress.” 

In their demurrer, respondents argued none of the elements were pled with 

particularity and the allegations were conclusory. On appeal, the Borbas argue they pled 

sufficient facts to satisfy each element of their intentional infliction of emotional distress 

claim.

We need not decide whether the trial court erred in sustaining the demurrer 

because any error was harmless. Had the claim survived demurrer, it necessarily would 

have failed on summary judgment. (See Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. 

Co. (2004) 33 Cal.4th 780, 800 [“ ‘[A] “miscarriage of justice” should be declared only 

when the court, “after an examination of the entire cause, including the evidence,” is of 

the “opinion” that it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error’ ”]; see also Grell v. Laci Le 

Beau Corp. (1999) 73 Cal.App.4th 1300, 1307 [error harmless when subsequent 

summary judgment on statute-of-limitations grounds would have disposed of claims 

erroneously dismissed on demurrer]; Curtis v. Twentieth Century-Fox Film Corp. (1956) 

140 Cal.App.2d 461, 464–465 [when two claims were based on the same factual 

allegations, plaintiff was not prejudiced by erroneous ruling sustaining a demurrer to one 

claim when the second claim was resolved against plaintiff after trial].)

The Borbas’ negligent and intentional infliction of emotional distress claims were 

based on the same factual allegations. The undisputed facts on the summary judgment 

motion established Dr. Erickson acted within the standard of care when he held Boston 
32.

by the neck following his delivery and before cutting the umbilical cord. The provision 

of medical services in accordance with the standard of care is not outrageous under the 

applicable standard, which requires conduct to be so extreme as to exceed all bounds 

usually tolerated in a civilized society. (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050–

1051.) If it was error to sustain the demurrer as to the intentional infliction of emotional 

distress claim, the error obviously was not prejudicial.

III. The Motion to Compel

The Borbas contend the trial court erred in denying their motion to compel 

discovery of documents related to communications with Drs. Cragun and Oken because, 

regardless of whether they were formally disclosed as experts, Dr. Erickson forfeited the 

right to shield communications with them from discovery by relying on their opinions in 

support of the summary judgment motion. The Borbas assert that by submitting their 

declarations in support of the summary judgment motion, respondents made these doctors 

testifying experts subject to pretrial discovery.

Ordinarily, until a party’s consultants are designated to testify as expert witnesses, 

their opinions and reports are not discoverable. (§§ 2034.210, 2034.410, 2034.415; 

County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654–655 [an expert 

consultant’s work is protected by the attorney work product privilege, but once it appears 

reasonably certain the expert will testify as a witness on a material matter in dispute, the 

privilege no longer applies and the expert’s opinions are subject to discovery and 

disclosure].) The requirements for disclosure of expert witness information are set forth 

in sections 2034.210 through 2034.720. After an initial trial date has been set in an 

action, “any party may obtain discovery by demanding that all parties simultaneously 

exchange information concerning each other’s expert trial witnesses.” (§ 2034.210.) 

Upon service of such a demand, “[a]ll parties who have appeared in the action shall 

exchange information concerning expert witnesses in writing on or before the date of 

exchange specified in the demand,” and produce the designated expert’s “discoverable 
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reports and writings” if the demand includes a demand for production of reports or 

writings. (§§ 2034.260, 2034.270.) “On receipt of an expert witness list from a party, 

any other party may take the deposition of any person on the list[,]” and the expert must 

produce any materials called for by the deposition notice. (§§ 2034.410, 2034.415.) 

In this case, it appears no demand for exchange of information concerning expert 

witnesses had been served when the Borbas propounded the request for production of 

documents. Therefore, Dr. Erickson’s communications with Drs. Cragun and Oken were 

not discoverable. Nevertheless, “where a party presents evidence that raises a significant 

question relating to the foundation of an expert’s opinion filed in support of or in 

opposition to a motion for summary judgment or summary adjudication, a deposition 

limited to that subject should be allowed.” (St. Mary, supra, 50 Cal.App.4th at p. 1534.) 

Whether to compel such a deposition falls within the sound discretion of the trial court 

(Id. at p. 1540.)

In St. Mary, the plaintiffs produced a retained medical expert’s declaration in 

opposition to the defendants’ summary judgment motion. (St. Mary, supra, 50

Cal.App.4th at pp. 1534–1535.) When the defendants took their motion off calendar and

attempted to depose the expert, the plaintiffs objected, arguing the expert could not be 

deposed until the parties exchanged expert witness lists pursuant to former section 2034.

(St. Mary, at pp. 1534–1535; former § 2034 [repealed by Stats. 2004, ch. 182, § 22, 

operative July 1, 2005]; see now §§ 2034.010 et seq. [added by Stats. 2004, ch. 182, 

§ 23].) The trial court denied the defendants’ ensuing motion to compel the expert’s 

deposition. (St. Mary, at p. 1537.)

The appellate court reversed, concluding the trial court abused its discretion in 

failing to allow the discovery. (St. Mary, supra, 50 Cal.App.4th at p. 1540.) The 

appellate court recognized the juxtaposition of the time requirements of former 

section 2034 and section 437c was problematic for litigants in drafting and noticing 

effective summary judgment motions, as there was little time to depose opposition 
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experts after the designation of experts but before the deadline to notice a summary 

judgment motion. (St. Mary, supra, 50 Cal.App.4th at p. 1538.) The appellate court 

realized it would defeat the summary procedure’s purpose to recognize a party’s absolute 

right to depose anyone providing evidence in support of or opposition to a summary 

judgment motion; on the other hand, the concept of a summary procedure would be 

defeated if the opposing party were allowed to defeat the motion by less than candid 

declarations. (Ibid.) The appellate court, therefore, believed “in proper circumstances 

the court should allow a party to a summary proceeding the opportunity to take limited 

discovery which may effectively dispose of the proceeding.” (St. Mary, supra,

50 Cal.App.4th at pp. 1538–1539.) 

The appellate court believed that situation was present there, as the defendants’ 

counsel presented information from which a serious question arose as to whether the 

plaintiffs’ expert’s declaration was factually incorrect. (St. Mary, supra, 50 Cal.App.4th 

at p. 1540.) The court noted it was possible if the expert were deposed, he may concede 

his error if confronted with proof he may have been mistaken. (Ibid.) Moreover, the 

defendants’ counsel submitted evidence which suggested the bases for the expert’s 

conclusions were untenable. (Ibid.) The court cautioned the process should not be 

utilized to turn summary proceedings into mini trials. (Ibid.) The court held where a 

party presents “objective facts” that “create a significant question regarding the validity 

of the affidavit or declaration which, if successfully pursued, will impeach the 

foundational basis of the affidavit or declaration in question,” the trial court has the 

discretion to allow additional discovery. (Id. at pp. 1540–1541.)

Here, the Borbas do not cite any objective facts that create a significant question 

as to the validity of the declarations of Drs. Cragun or Oken which, if successfully 

pursued, would impeach the foundational bases of their declarations. The Borbas assert 

their declarations lack veracity and were based on untenable facts because they did not 

review Dr. Erickson’s deposition, deposition exhibits, and physician notes. The Borbas 
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believe if these experts were confronted with admissions in Dr. Erickson’s deposition and 

written discovery responses, they would have been led to at least question, if not 

reevaluate, their own findings. They specifically cite to Dr. Erickson’s deposition 

testimony about one of the photographs of him holding Boston, which he testified: 

(1) showed a newborn baby covered with a lot of vernix being wiped off; (2) he held the 

baby in the manner depicted in the photograph “[b]ecause it was the only way to hold the 

baby at that time,” as the baby “was covered with the vernix” and “was very slippery,” 

and he was not able to get ahold of the baby any other way; and (3) it did “appear as 

though the baby is being held with the fingers around the neck.” They also cite to 

Dr. Erickson’s written discovery responses, in which he admitted he did not possess any 

documents that supported his contention he acted within the standard of care with respect 

to the care he provided Meredith, Boston, or Frank. 

We fail to see how Dr. Erickson’s deposition testimony and assertion that he did 

not have any documents to show he acted within the standard of care show that the 

declarations of Drs. Cragun and Oken were factually incorrect or make their conclusions 

untenable. Both Drs. Cragun and Oken declared they reviewed Meredith’s deposition 

and the color photo exhibits attached thereto depicting Dr. Erickson holding Boston. 

Based on their review of the medical records, the Borbas’ version of events and the 

photographs, Dr. Cragun determined Dr. Erickson did not breach the standard of care and 

Dr. Oken determined Dr. Erickson did not cause any of Boston’s claimed injuries. It 

would not have made any difference had they reviewed Dr. Erickson’s testimony he held 

Boston the same way as depicted in the photographs. Moreover, Dr. Erickson’s 

explanation as to why he held Boston in that manner, or whether Dr. Erickson possessed 

documents showing the standard of care, has no bearing on the opinions of Drs. Cragun 

and Oken on the standard of care and injury to Boston.

The Borbas contend St. Mary “was clearly rejected in substance, if not in name” in 

DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671. We disagree. In DeLuca, 
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the appellate court was reviewing a motion to disqualify opposing counsel based on 

allegedly improper conduct between opposing counsel and the movant’s expert witness. 

(Id. at pp. 680–681, 686.) In discussing the application of the attorney-client privilege 

and work product protection to communications between counsel and an expert witness, 

the court explained that while both applied to experts solely retained as a consulting 

expert, generally neither will prevent disclosure of statements to, or reports from, a 

testifying expert. (Id. at pp. 688–689.) The court further explained that once a testifying 

expert is designated as a witness, the attorney-client privilege no longer applies, and 

when the expert is expected to testify, the expert’s report becomes discoverable, noting 

the discovery statutes provide for the mutual exchange of testifying experts’ reports, 

citing section 2034.210, subdivision (c). (DeLuca, at p. 689 & fn. 19.)

Rather than reject St. Mary, DeLuca confirms the attorney-client privilege and 

work product protections apply until an expert witness is designated as a witness in 

accordance with the discovery statutes. DeLuca did not address the issue presented in 

St. Mary, namely, whether expert witness reports are discoverable prior to the 

simultaneous exchange of expert witness information when an expert provides a 

declaration in connection with a summary judgment motion. The trial court did not abuse 

its discretion when it relied on St. Mary and determined the Borbas were not entitled to 

the discovery they requested. 

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.
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 DE SANTOS, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

MEEHAN, J.