1

Filed 10/12/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MAXINE STEWART, as Personal 

Representative, etc.,

†

Petitioner,

v.

THE SUPERIOR COURT OF 

SAN BERNARDINO COUNTY,

Respondent;

ST. JOSEPH’S HEALTH et al.,

Real Parties in Interest.

E067316

(Super.Ct.No. CIVVS1205737)

OPINION

 

*

 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion 

is certified for publication with the exception of parts 2 and 3.

†

 Petitioner, Maxine Stewart, brings causes of action as the personal 

representative of an estate. Previous orders we issued in this case indicated that Bettina 

Gray, Jordon Carter, Paul Carter, and Regina Carter were also petitioners, as they are 

plaintiffs alongside Stewart in the trial court action. Upon further review, it appears Gray 

and the Carters assert a single cause of action for wrongful death, which was unaffected 

by the summary adjudication order the petition asks us to review. Consequently, they 

should not be parties to this petition. We have amended the caption accordingly.
2

ORIGINAL PROCEEDING; petition for writ of mandate. Michael A. Sachs, 

Judge. Petition granted.

McMahan Law, Carl A. McMahan and Mark J. Habeeb for Petitioner.

No appearance for Respondent.

Brobeck, West, Borges, Rosa & Douville, Louise M. Douville and Edward J. Reid 

for Real Parties in Interest.

The petition in this case challenges a trial court order summarily adjudicating a 

cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the 

Act), a cause of action for fraud by concealment, and another for medical battery, while 

allowing other claims, including one for medical negligence, to proceed to trial. Stewart

is the representative of Anthony Carter, a man who died after admission to a hospital 

owned by real parties in interest. She alleges the hospital “denied and withheld from Mr. 

Carter the right to refuse an unnecessary surgery, denied and withheld from Mr. Carter

the right to be involved in secret hospital meetings to invalidate his designated consent, 

and denied and withheld from Mr. Carter his right to a second opinion prior to proceeding 

with an unwarranted surgery that resulted in a hypoxic injury, brain damage, cardiac 

arrest and his untimely death.” Having concluded the petition might have merit, we 

stayed the action in the trial court and requested an informal response. Having received 

and read the “return by verified answer” that was filed by real parties in interest, we then 
3

set an order to show cause and requested further briefing on a specific issue.

1

 Real 

parties in interest decided to stand on their informal response in lieu of filing another 

brief, and Stewart declined to file a traverse. 

We now explain why we conclude we must grant the petition. Furthermore, we 

find it important to emphasize that elders have the right to autonomy in the medical 

decision-making process. We therefore publish the portion of this opinion that discusses 

the cause of action for elder abuse to explain how, in our view, a substantial impairment 

of this right can constitute actionable “neglect” of an elder within the meaning of both the 

little-invoked catchall definition contained in Welfare and Institutions Code 

section 15610.57, subdivision (a)(1), and two of the types of neglect that are set forth in

Welfare and Institutions Code section 15610.57, subdivision (a)(2).

PETITIONER’S ALLEGATIONS

The operative pleading alleges the following:

2 Real parties in interest3 own and 

operate a hospital called St. Mary Medical Center. On February 1, 2012, Carter, who was 

 

1

 Our order directed the parties to “specifically . . . address the applicability of 

Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161 (Winn), in light of the 

fact that Carter appears to have been a patient in a facility owned by real parties in 

interest.”

2

 We omit allegations that are unnecessary to the resolution of this petition, 

including allegations pertaining to the wound care provided to Carter.

3

 Real parties in interest are St. Mary Medical Center, St. Joseph Health System, 

and David O’Brien, M.D. For ease of reference, we refer to these parties collectively as 

“St. Mary.” We mean no disrespect.
4

78 years old and experiencing confusion, became a patient at St. Mary. He named 

Stewart, who was at all relevant times a registered nurse with an active license, his 

durable power of attorney for health care decisions during this admission.

4

Timothy A. Denton, M.D., one of St. Mary’s codefendants, told Stewart two days 

after Carter’s admission that she should consider placing Carter in hospice care, as well 

as inserting a gastronomy tube (g-tube). Stewart objected, and Dr. Denton agreed to 

order a calorie count instead of a g-tube.

Some of the defendants, including real parties in interest, planned to perform 

surgery and implant a pacemaker in Carter, in part because he was experiencing foursecond gaps in his heartbeat. On February 7, 2012, Stewart canceled a pacemaker 

procedure and told real parties in interest she thought the four-second pauses were related 

to Carter’s sleep apnea. She requested a second opinion regarding Carter’s need for a 

pacemaker and opined that he had never previously shown “ ‘clear indicators’ ” that he 

needed one.

Also on February 7, 2012, Dr. Denton, real parties in interest, and others told 

Stewart that Carter required a g-tube because he was not receiving adequate calories.

Petitioner asked them to try parenteral nutrition (TPN) instead of a g-tube, but they 

“refused to consider and/or abide by this request.”

On February 17, 2012, real parties in interest and the other defendants informed 

Stewart that a pacemaker procedure was scheduled for the following day. Stewart “stated 

 

4

 Carter’s capacity to execute the power of attorney is not at issue in this 

proceeding.
5

that she would absolutely not consent to such a procedure” and again requested a second 

opinion.

The next day, real parties in interest and some of the other defendants, including 

Dr. Denton, determined through St. Mary’s risk management department that they could 

continue with the pacemaker procedure despite petitioner’s objection. Stewart had at no 

time consented to this procedure and had instead expressly objected to it.

On February 22, 2012, Stewart contacted St. Mary to inquire about Carter and 

learned he had not had breakfast because he was scheduled for surgery. Stewart again 

objected to the pacemaker procedure. When Stewart arrived at St. Mary at approximately 

noon, she was informed the surgery had occurred at 8:30 that morning. Stewart met with 

several of real parties in interest’s representatives, who told her they had proceeded 

without her consent because she was not acting in Carter’s best interests.

Carter went into cardiac arrest sometime on or about February 22, 2012. On 

information and belief, this occurred because Carter did not need the pacemaker. The 

pacemaker was surgically removed on February 24, 2012. Carter, who had experienced 

brain damage, required acute skilled nursing care until his death on April 15, 2013.

PROCEDURAL BACKGROUND

Stewart named St. Mary, Dr. Denton, and others on several causes of action in the 

operative pleading. St. Mary moved for summary adjudication of most of these causes of 

action. As relevant to this petition, it argued the elder abuse claim failed because holding 

an ethics committee meeting about Stewart’s power of attorney over Carter could not 
6

amount to reckless neglect within the meaning of the Act. The fraudulent concealment 

claim, St. Mary contended, failed because a hospital owes no fiduciary duty to a patient, 

and the medical battery claim was allegedly insufficient because the hospital itself did not 

perform the surgery and the doctors who performed the surgery were not hospital 

employees.

For evidentiary support for these assertions, St. Mary largely relied on a 

declaration from Mary Ransbury, R.N., a licensed registered nurse and wound care 

specialist; we discuss this declaration post. Using the testimony of various deponents, 

including Dr. Denton, St. Mary also established the following background facts and 

occurrences:

Dr. Denton thought a pacemaker “was clearly indicated” for Carter due to “long 

[cardiac] pauses” requiring intervention by a specialist. Dr. Denton therefore referred 

Carter to another codefendant, Ramin Ashtiani, M.D., who eventually made the decision 

to implant the pacemaker and then actually performed the pacemaker surgery.

When Stewart refused to consent to a pacemaker procedure, Dr. Denton asked St. 

Mary’s risk management department for a consultation regarding concerns he had about 

Carter’s power of attorney. The risk management department decided to convene an 

ethics committee meeting. Dr. Denton, who participated in the meeting by phone, 

“stressed the patient could die” if he did not receive a pacemaker and said he did not feel 

Stewart was acting in his best interests because Dr. Denton knew Carter would “want

everything done to save his life.” There was a suspicion “that there might be a conflict 
7

with Ms. Stewart.” After a meeting on a Friday afternoon, an “action plan” was reached 

that “the power of attorney was valid.” However, the committee also concluded that 

Stewart could be voided as Carter’s designee if she failed to authorize lifesaving 

measures, because “the language of the power of attorney stated, in essence, that all 

measures were to be taken to preserve [Carter’s] life.” At some point in time after the 

meeting, Stewart was in fact voided as the designee of Carter’s power of attorney. At his 

deposition, Dr. Denton admitted he did not consult with any doctor other than 

Dr. Ashtiani about Carter’s pacemaker procedure. Instead, he contacted St. Mary’s risk 

management department and said something like, “Please help me with this case. There 

are lots of legal issues going on. There is a power of attorney that I think is problematic, 

and I don’t have a clue what to do about this.”

Dr. Denton described the ethics committee’s role in the surgery as follows: 

“[W]hat happens is that I provide risk management with information and they make a 

decision about what to do. [¶] . . . [¶] For example, since I don’t implant pacemakers, 

they will say ‘Go ahead. The pacemaker is indicated. It’s okay to do that.’ And then the 

pacemaker can be done by the person doing the procedure.” For his part, Dr. Ashtiani, 

when asked if the risk management department “gave [him] the green light” to perform 

the pacemaker surgery, responded, “If medically necessary, from paper standpoint, we 

are okay to do that.”

In conjunction with its argument regarding the cause of action for medical battery,

St. Mary also offered an admission form showing Carter had signed his name next to an 
8

advisement that all “Physicians and Surgeons furnishing services to the patient . . . are 

independent contractors and are not employees of the hospital.” St. Mary otherwise 

relied on discovery responses and the aforementioned Ransbury declaration.

The bulk of this declaration addressed allegations that St. Mary failed to provide 

adequate wound care to Carter, which does not concern us for the reasons stated in 

footnote 2, ante. In fact, only the last paragraph of the Ransbury declaration discussed 

the ethics committee meeting or the topic of Carter’s consent to the pacemaker surgery. 

That paragraph reads: “Finally, plaintiffs allege in their operative Complaint that hospital 

defendants fraudulently concealed from Maxine Stewart the fact that Mr. Carter was to 

undergo pacemaker implantation surgery. Based on my review of the above-referenced 

materials, I note that the sole determination of the Ethics Committee was that the Power 

of Attorney was valid and that the Power of Attorney indicated that all life-saving 

measures were to be done for Carter. The Ethics Committee did not decide whether or 

not to operate on Mr. Carter. This decision to perform surgery was made by Dr. Ashtiani.

This stands to reason given that a patient’s surgeon is the one who determines whether a 

surgical procedure is appropriate and should be performed, not the hospital staff where 

the surgery is to take place. Accordingly, based on my review of the above noted 

materials and my education, training and experience, I conclude that hospital defendants 

had no duty to inform Maxine Stewart that Mr. Carter was to undergo surgery. If such a 

responsibility existed under the circumstances it would be Dr. Ashtiani’s as he was 

Carter’s treating physician and surgeon.”
9

Stewart filed written opposition to St. Mary’s summary judgment motion. She 

generally argued that declarations from two medical experts, Vikram Rajan, M.D., and 

Charles Pietrafesa, M.D., created triable issues of material fact regarding the standard of 

care and causation. Dr. Pietrafesa, who focused most of his opinions on the ethics of 

conducting an ethics committee meeting as occurred in this case, discussed in detail his 

opinion “that the decision to implant a permanent pacemaker without appropriate 

informed consent on this patient fell below the standard of care in the medical 

community.”5 He was of the opinion that anyone who wanted to operate on Carter

without Stewart’s consent was required to obtain a court order, as well as that petitioner 

or her representative should have been at the ethics committee meeting, which he called a 

“sham.” Finally, Dr. Pietrafesa concluded that the act of “authorizing and proceeding 

with this unnecessary surgery directly resulted in the patient’s cardiac arrest and resulting 

death.” For his part, Dr. Rajan opined that Dr. Denton breached the standard of care by 

informing St. Mary that the “surgery to implant a permanent pacemaker was a life 

threatening condition that required immediate action.” In Dr. Rajan’s opinion, there was 

no evidence that a pacemaker was needed on an emergency basis. Like Dr. Pietrafesa, 

Dr. Rajan determined that the pacemaker surgery led to Carter’s death.

 

5 From 1992 to 2009, Dr. Pietrafesa served as the Executive Medical Director and 

Chief Medical Officer at St. John’s Health Center in Santa Monica, California. In that 

capacity, he was “responsible for the management of the ethic committee,” established 

the hospital’s bioethics service, and “had consulting and direct line responsibility for the 

day to day operations of the activities of the hospital’s bioethics function.”
10

In addition to the declarations of Dr. Pietrafesa and Dr. Rajan, Stewart relied in 

part on evidence in the form of doctor’s notes6from Carter’s medical file. These 

establish the following: 

Dr. Denton noted on the February 1, 2012 admission form that Carter had “a long 

complex history” and described Carter’s social environment as “fairly supportive.” After 

a consultation that occurred the day after Carter’s admission, a different doctor described 

him as “markedly somnolent” and indicated that he “open[ed his] eyes only transiently.”

On February 6 or 7, 2012, Dr. Denton completed a doctor’s note regarding 

“extensive discussions” he had with Stewart regarding Carter’s caloric intake on an 

undisclosed date. The note reflects that Stewart asked to wait until after a calorie count 

was completed before placing a g-tube, and that she still did not want a g-tube. She said 

Carter was “taking in more calories now” after Dr. Denton indicated Carter was not 

consuming adequate nutrition. Although Dr. Denton agreed to make a final decision 

about g-tube placement later, he indicated he would ask to have Carter “observe[d] 

during the intervals when the family is in the room.”

Rajeev Yelamanchili, M.D., is the doctor who had previously treated Carter for 

sleep apnea, as alleged in the operative pleading. On February 7, 2012, Dr. Yelamanchili 

consulted with Carter regarding “obstructive sleep apnea syndrome [(OSA)] with sinus 

pauses”; he stated Carter had been diagnosed with “severe OSA . . . 2 years back.” He 

 

6 Various doctor’s notes refer to Carter’s “girlfriend” or “wife.” The operative 

pleading refers to Stewart as Carter’s “partner,” and one of Stewart’s experts referred to 

her as Carter’s “life partner.” We follow the parties’ convention and infer that any 

references to Carter’s partner, girlfriend, or wife are to Stewart.
11

suggested treating Carter’s apnea “to see how the sinus pauses are,” said he would be 

“happy to follow [Carter] as an outpatient after discharge,” and indicated a repeat study 

might need to occur because Carter had lost a significant amount of weight.

Dr. Yemanchili’s report concludes with: “If the follow up study fails to reveal evidence 

of OSA with sinus pauses then permanent pacemaker will be indicated. I have informed 

this to the wife and she is satisfied.”

On February 8, 2012, Arnab Biswas, DO, provided a consultation regarding 

placement of a g-tube because Carter was “unable to take anything by mouth.” 

Dr. Biswas noted Carter was “a very poor historian. He only grunts and mumbles and is 

unable to provide any intelligible history.” Because Stewart was “unavailable,” 

Dr. Biswas was forced to obtain much of Carter’s history from records and physical 

examination. Dr. Biswas indicated that someone would discuss “risks and benefits of” gtube placement with Stewart, as well as that “TPN would be a good short-term solution” 

if a g-tube was intolerable or impossible.

The next doctor’s note in chronological order is signed by Dr. Denton and dated 

February 18, 2012. After a notation that “[m]uch has happened over the last 24 hours,” 

Dr. Denton described the ethics committee meeting and the decision reached thereat. He 

then remarked: “Given this, [Stewart] was contacted by the nursing staff stating we are 

going to be moving forward with appropriate care of this patient. [¶] What is also clear 

is that Adult Protective Services has been called and are anxiously await [sic] my

interview with Adult Protective Services. [¶] So what we have now is, we now have the 
12

freedom to provide appropriate care for this patient and today we will be trying to find 

the appropriate calorie count.” After recounting that Carter was oriented to person but 

not place or time, Dr. Denton opined that Carter “[c]learly” could not make decisions on 

his own. He then wrote: “If the document is legal, if the power of attorney is legal, then 

we will proceed appropriately. If the power of attorney is not legal, then we will proceed 

appropriately with the exact same therapy.” The February 18, 2012 doctor’s note 

concluded by indicating that Dr. Denton was waiting for a final calorie count but planned 

to order g-tube placement and that he would “be making determination regarding the 

appropriateness of permanent pacemaker placement, even though he has already had a 4 

second pause.”

Dr. Ashtiani prepared a report after the pacemaker surgery on February 21, 2012. 

He acknowledged Carter’s sleep apnea but stated, “it was determined that patient will 

definitely benefit from pacemaker due to prevention of malignant form of arrhythmia and 

its complications especially if it happens and provoked during episodes of sleep apnea.”

Next, Dr. Ashtiani commented that Stewart had previously revoked consent to the 

pacemaker surgery and said he told Dr. Denton he “basically discharged [him]self from 

the rest of the care for the patient.”

Dr. Ashtiani then wrote: “Again, I was contacted by Dr. Denton since he had 

frequent and multiple discussions with the patient’s girlfriend due to different medical 

issues and need for medical intervention and refusal of her to help the patient. She 

provided with a paper stating as power of attorney which was obtained when the patient 
13

was not alert and oriented, to be able to consent for that. Basically, this lady never had 

any power of attorney, in order to have any legal thing about the case and she of course 

did not seem to be his best advocate when he needed the most. For that reason, risk 

management from the hospital got involved and they determined that we should proceed 

to implant a pacemaker if medically is necessary. I had this discussion with Dr. Kyle as 

well as Dr. O’Brien and he agreed upon the planned procedure based on this discussion. 

I also spoke with Dr. Yelamanchili, the pulmonologist and he also agreed upon the 

planned procedure and the logic behind the implantation of the device. For those 

mentioned reason, we decided to proceed with the implantation of the device.” The final 

sentence before the report’s conclusion section is: “I need to mention, the consent was 

signed by two physicians which was advocated through risk management, myself, and 

Dr. Denton.”

The final doctor’s order contained in our record was prepared by Carter’s 

discharging physician, Huy Nguyen, M.D. The note explained that Dr. Denton had 

admitted Carter, but that Dr. Nguyen “took over as the primary care physician on request 

of [Stewart] who has verbal power of authority for second opinion.” After initially 

deeming it inappropriate to remove the pacemaker as Stewart had requested, Dr. Nguyen 

later consulted with Dr. Arshia Noori and decided to remove the pacemaker, after all.

This was because, “on review of the telemonitor strips, it looks like the RV lead was not 

adequately . . . placed, is autocapturing and then it sent him into cardiac ventricular 

fibrillation.”
14

In addition to these doctor’s notes and related records concerning Carter, Stewart 

relied on deposition testimony from numerous witnesses when opposing St. Mary’s 

summary judgment motion. Stewart herself testified that Carter first gave her authority to 

make medical decisions on his behalf in 1998 or 1999. She said when she asked 

Dr. Denton about trying TPN instead of a g-tube during Carter’s 2012 admission to St. 

Mary, his response was, “Absolutely not.” He gave no reason. When asked whether, 

based on her education and training as a nurse, Stewart had developed an impression as to 

why Dr. Denton might have rejected TPN, her response was, “I believe he wanted 

[Carter] to be put in a care facility.” Stewart confirmed that Carter had been seeing 

Dr. Yelamanchili for sleep apnea “[f]or many years,” and she reported that, when 

Dr. Denton first told her he recommended a pacemaker, she said, “That’s because he has 

sleep apnea. . . . He needs to be on a CPAP machine.” Stewart’s “next step” was to 

contact Dr. Yelamanchili, which she did “the next moment [she] was able to speak to 

him.” When Stewart “told [Dr. Yelamanchili] that Dr. Denton wanted to put in a 

pacemaker, [Dr. Yelamanchili] said, ‘We don’t need to do anything invasive. He needs a 

CPAP machine.” Stewart then testified that a St. Mary employee called to tell her a 

pacemaker surgery had been scheduled; Stewart “just told them, ‘I’m not consenting,’ 

and that [she] wanted a second opinion.”

One of the other deponents on whose testimony Stewart relied is Susan Alvarez, 

who was asked by her director, Mia Bunch, to participate in the ethics committee meeting 
15

“as a member of the risk management team.”

7 Alvarez explained that Dr. Denton called 

Bunch, in her capacity as St. Mary’s risk manager, to discuss concerns he had regarding 

Carter’s care. Sometime before noon on Friday, February 17, 2012, the ethics team, 

including Alvarez, met in a conference room; Dr. Denton participated by telephone. The 

meeting lasted approximately 20-30 minutes and included Alvarez, a case manager 

named Minda, someone from social services, a woman named Mary, and a nonclinical 

employee named John Perring-Mulligan. Avarez is “not clinical, either.” No one “from 

[Carter’s] side” attended. Later the same day, Alvarez, Bunch, and Perring-Mulligan met 

in the office of St. Mary’s CEO to discuss “what the concerns were.” Dr. Denton was not 

present at all, but at least one attorney participated by telephone. After meeting for 

“[m]aybe 20 minutes,” the “action plan,” or the determination that the power of attorney 

was valid but that Stewart was voided as the designee, was made. In “the second part of” 

this meeting, Bunch was to contact Dr. Denton and tell him about the action plan.

Alvarez explained that, on Tuesday, February 22, 2012, she, Bunch, Dr. O’Brien, 

and others met with Stewart, who first learned that the pacemaker surgery had occurred.

As Alvarez admitted, “the surgery went forward anyway against Maxine Stewart’s 

directive not to proceed.” In response to a question implying Dr. Denton had suggested 

Stewart had some kind of financial motive for refusing the pacemaker, Alvarez stated: 

“What I recall why he was talking about finances and he was saying that he knew—he 

 

7 Some of the testimony from Alvarez and Bunch that Stewart used in opposing 

the motion is identical to the testimony St. Mary used to establish the foundational facts 

we described ante. We now summarize only that testimony from Stewart that is new.
16

knew [Carter], you know, through his office, basically like he’s cared for this patient, and 

he just said that she—maybe it—it could be. I mean he really didn’t say why, but he said 

financial, you know. You need to look at the financial aspect, or he mentioned something 

about her taking control of money, but that’s when our person said, ‘That part we don’t 

talk about.’ [¶] . . . [¶] John [Perring-Mulligan] basically shut that down.”

Bunch’s deposition testimony adds the following additional details. Neither Dr. 

Ashtiani (the surgeon who implanted the pacemaker), Dr. Yelamanchili (the 

pulmonologist who treated Carter for sleep apnea), nor Dr. Biswas (the author of the 

“poor historian” doctor’s note) participated in the ethics process. Rather, “[i]t was 

Dr. Denton, from an M.D. standpoint, that was involved in that decision.” Although she 

would not speculate as to his meaning, Bunch admitted Dr. Denton, when told of the 

action plan, spoke the words, “So my posterior is covered.” Bunch also authenticated a 

note she had written, which reads, “Explained conversation with [power of attorney] 

Maxine wanting second opinion. Dr. Denton stated, ‘I won’t do that.’ ”

Stewart also noted Dr. Denton’s deposition testimony established that he and Dr. 

Ashtiani were both members of the same medical group when they provided care to 

Carter. Her trial court brief in opposition to St. Mary’s motion alleged that “Dr. Denton 

specifically pushed for the placement of a permanent pacemaker by Dr. Ashtiani, an 

electrophysiologist, his partner and a surgeon in the same group.”
17

Finally, Stewart offered deposition testimony from Dr. Nguyen and Dr. Noori. 

Both testified that Carter did not require a pacemaker on an emergency basis. Dr. Noori 

explained that Carter went into cardiac arrest after a lead from the pacemaker dislodged.

Shortly before the hearing on St. Mary’s motion for summary judgment and/or 

adjudication, the trial court heard a similar motion by Dr. Denton. Finding triable issues 

of material fact existed regarding breach and causation, the court denied Dr. Denton’s 

motion as to Stewart’s cause of action for professional negligence. The trial court found 

the motion procedurally improper as to the elder abuse claim, but it summarily 

adjudicated the cause of action for medical battery because Dr. Denton “did not 

physically perform the unconsented surgery.” Finally, at least as relevant to this petition, 

the trial court denied the motion as to Stewart’s cause of action for fraudulent 

concealment. With respect to the latter ruling, the trial court explained: “the February 

18, 2012 notes suggest [Dr.] Denton was prepared to ensure the procedure no matter what 

by involving Adult Protective Services, [Dr.] Denton advocated for the surgery to the 

committee, and [Dr.] Denton said ‘I won’t do that’ when asked about a second opinion. 

Thus, a jury could infer that the failure to inform Stewart the surgery would occur was an 

intentional effort to conceal the scheduling of the surgery.”

As previously indicated, the trial court granted St. Mary’s motion for summary 

judgment and/or adjudication, but only as to the causes of action for elder abuse, medical 

battery, and fraudulent concealment. The court explained it was granting the motion as to 

the elder abuse claim because “[i]nterpreting the power of attorney then letting a . . . 
18

surgery occur was not withholding care or not within custodial capacity.” With respect to 

medical battery, the court’s ruling was “the same as . . . [Dr.] Denton’s case,” or that St. 

Mary could not be liable because Dr. Ashtiani performed the surgery. The trial court 

reasoned that St. Mary “didn’t direct anybody to do the procedure. Dr. Denton signed the 

authorization. Ashtiani performed the procedure. Again, the hospital just offered an 

opinion regarding the health directives in this case.” Despite denying summary 

adjudication on the fraudulent concealment claim when Dr. Denton moved for summary 

judgment, the trial court granted St. Mary’s motion as to that cause of action on the 

theory that a hospital owes no fiduciary duty to one of its patients.

Stewart lodged evidentiary objections to St. Mary’s evidence in conjunction with 

her opposition, and St. Mary, in reply, did the same with respect to Stewart’s evidence. 

Our record contains no indication that the trial court ruled on these objections; any such 

objections are therefore presumed overruled and preserved on appellate review. (Reid v. 

Google, Inc. (2010) 50 Cal.4th 512, 534.) Stewart does not argue the merits of any of her 

evidentiary objections in this court. St. Mary does, but only by including in the response 

a “respectful[] request [that] this [c]ourt consider [its] written objections to Petitioners’ 

expert declarations and disregard the objectionable material therein.” We decline the 

invitation, as “[t]his court is not inclined to act as counsel for . . . appellant and furnish a 

legal argument as to how the trial court’s rulings . . . constituted an abuse of discretion.” 

(Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) We therefore 

consider all the evidence in the record before us. 
19

DISCUSSION

“A party may move for summary adjudication as to one or more causes of action 

within an action . . . if the party contends that the cause of action has no merit, . . .” 

(Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication may be 

made by itself or as an alternative to a motion for summary judgment and shall proceed in 

all procedural respects as a motion for summary judgment.” (Id., subd. (f)(2).)

“A defendant making the motion for summary adjudication has the initial burden 

of showing that the cause of action lacks merit because one or more elements of the cause 

of action cannot be established or there is a complete defense to that cause of action. 

[Citations.] If the defendant fails to make this initial showing, it is unnecessary to 

examine the plaintiff’s opposing evidence and the motion must be denied. However, if 

the moving papers establish a prima facie showing that justifies a judgment in the 

defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of 

the existence of a triable material factual issue. In meeting this obligation, the plaintiff 

may not rely on the mere allegations of its pleadings, but must ‘set forth the specific facts 

showing that a triable issue of material fact exists as to that cause of action. . . .’ 

[Citation.] ‘There is a triable issue of 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.’ ” (Intrieri v. Superior Court

(2004) 117 Cal.App.4th 72, 81-82 (Intrieri).) 
20

Summary adjudication rulings may be reviewed by writ of mandate. (Code Civ. 

Proc., § 437c, subd. (m)(1).) In this case, writ review is particularly warranted because a 

second trial would be necessary if we required Stewart to wait until an appeal from the 

final judgment before deciding that summary adjudication of the causes of action for 

elder abuse, fraudulent concealment, and medical battery was improper. (Noe v. Superior 

Court (2015) 237 Cal.App.4th 316, 324.) Although we independently review orders 

granting summary adjudication, we still “ ‘must “consider all of the evidence” and “all” 

of the “inferences” reasonably drawn therefrom [citation], and must view such evidence 

[citations] and such inferences [citations], in the light most favorable to the opposing 

party.’ [Citation.] The trial court’s stated reasons for granting summary adjudication are 

not binding on the reviewing court, which reviews the trial court’s ruling, not its 

rationale.” (Intrieri, supra, 117 Cal.App.4th at p. 81.)

1. The trial court erred in summarily adjudicating the elder abuse cause of 

action

Stewart argues the trial court erred in summarily adjudicating her cause of action 

for elder abuse because there are triable issues of material fact regarding whether “denial 

of care and abuse of custodial power [occurred] with respect to the unauthorized surgical 

procedure to implant a pacemaker.” In response, St. Mary asserts its act of conducting an 

ethics committee meeting about the power of attorney was not an act implicating 
21

custodial duties toward Carter.

8

 Because, as we now explain, a reasonable jury could 

find that St. Mary recklessly and/or fraudulently failed to meet its custodial obligations 

toward Carter, Stewart’s position has more merit.

“[The Act] affords certain protections to elders and dependent adults. Section 

15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff 

who can prove ‘by clear and convincing evidence that a defendant is liable for physical 

abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,’ and 

who can demonstrate that the defendant acted with ‘recklessness, oppression, fraud, or 

malice in the commission of this abuse.’ [Welfare and Institutions Code s]ection 

15610.57, in turn, defines ‘[n]eglect’ in relevant part as ‘[t]he negligent failure of any 

person having the care or custody of an elder or a dependent adult to exercise that degree 

of care that a reasonable person in a like position would exercise.’ ” [Citation.]” (Winn, 

 

8

 We briefly comment on St. Mary’s assertion that “the sole determination [of the 

ethics committee meeting] was that the Power of Attorney was valid and that the Power 

of Attorney indicated that all life-saving measures were to be done for Carter,” which we 

interpret to be an attempt by St. Mary to distance itself from the actual performance of 

the surgery. Dr. Denton and Dr. Ashtiani, however, described a closer connection 

between the ethics committee’s decision and the surgery itself. For example, Dr. Denton 

testified that the result of the ethics committee meeting was that “the pacemaker can be 

done by the person doing the procedure.” Dr. Ashtiani agreed that the ethics committee 

gave him the “green light” to proceed with surgery. Finally, Dr. Ashtiani noted that “risk 

management” told him he and Dr. Denton could sign the consent form when he 

completed the report on Carter’s pacemaker surgery. There are at least triable issues of 

material fact regarding the extent of St. Mary’s connection to the performance of the 

actual surgery. For these reasons, we feel comfortable, in discussing the issues the 

parties raise, indicating at times that St. Mary authorized Carter’s pacemaker surgery. 

We emphasize, however, that the extent of St. Mary’s role in the actual performance of 

the surgery is for a jury to determine. 
22

supra, 63 Cal.4th at p. 152.) “The Act seems premised on the idea that certain situations 

place elders and dependent adults at heightened risk of harm.” (Id. at pp. 159-160.)

However, the Winn court emphasized that the Act is “not meant to encompass 

every course of behavior that fits either legal or colloquial definitions of neglect.” (Winn, 

supra, 63 Cal.4th at p. 159.) Rather, “neglect [under the Act] requires a caretaking or 

custodial relationship that arises where an elder or dependent adult depends on another 

for the provision of some or all of his or her fundamental needs.” (Id. at p. 160.) 

To us, it appears Carter depended on St. Mary to meet his basic needs in ways that 

establish the type of custodial relationship described by the Winn court. In fact, we note 

Carter’s admission to an acute care facility such as St. Mary, standing alone, would have 

been sufficient to make him a “dependent adult” who would be entitled to the Act’s 

protections even if he had not also qualified as an “elder” by virtue of his age. (Welf. & 

Inst. Code, §§ 15610.23, subd. (b) [definition of “dependent adult”], 15610.27 [definition 

of “elder”]; Health & Saf. Code, § 1250, subd. (a) [definition of “general acute care 

hospital”].) The facts of this case further support our conclusion, as Carter was 

experiencing confusion upon admission, and a doctor’s note prepared a week after 

admission describes him as a “very poor historian” who could not provide a coherent 

history and tended only to mumble and grunt. The record also shows that Carter at times 

needed medical assistance, including a g-tube, to consume adequate calories. Finally, St. 

Mary readily admits Dr. Denton told it that Carter’s health was poor enough that he 

required a pacemaker on an emergency basis. For these reasons, we conclude St. Mary 
23

had “care or custody of” Carter and therefore was obligated “ ‘to exercise that degree of 

care that a reasonable person in a like position would exercise.’ [Citation.]” (Winn, 

supra, 63 Cal.4th at p. 152.) 

St. Mary does not and cannot deny that it had at least some amount of care and 

custody over its own patient; rather, it asks us to make a care and custody determination 

as to the specific circumstances surrounding the ethics committee meeting instead of as to 

the relationship between Carter and St. Mary as a whole. The ethics committee meeting,

in St. Mary’s view, was not about the provision of medical care but instead involved only 

the interpretation of Stewart’s power of attorney. Relying on both Winn and Covenant 

Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 (Covenant Care), St. Mary argues 

such a nonmedical or administrative act cannot be deemed custodial, and cannot 

constitute “neglect” under the Act. We now explain why neither case supports this 

theory.

In the Winn court’s words, the type of relationship the Act contemplates is “a 

robust caretaking or custodial relationship—that is, a relationship where a certain party 

has assumed a significant measure of responsibility for attending to one or more of an 

elder’s basic needs that an able-bodied and fully competent adult would ordinarily be 

capable of managing without assistance.” (Winn, supra, 63 Cal.4th at p. 158.) Applying 

this rule to the facts before it, the court found the provider of an outpatient clinic could 

not have committed elder abuse against one of that clinic’s patients because no custodial 

relationship was present. (Id. at p. 165.) The patient had received only “intermittent, 
24

outpatient medical treatment,” and “[n]o allegations in the complaint supported an 

inference that [she] relied on defendants in any way distinct from an able-bodied and 

fully competent adult’s reliance on the advice and care of his or her medical providers.” 

(Ibid.) 

We do not see how Winn supports the suggestion that “when [St. Mary] 

interpreted [Carter’s] Power of Attorney, [it was] no longer acting as care custodian[], but 

rather as [a] healthcare provider[] focused on the undertaking of medical services.” In 

fact, in our view, Winn supports the opposite conclusion. Here, St. Mary accepted Carter

as a patient with knowledge of his “confus[ed]” state, which left him a “poor historian,” 

and its records show Carter at times required assistance with feeding. Moreover, the 

ethics committee authorized the performance of surgery on Carter’s behalf on the 

assumption that he lacked the ability to consent. In our view, St. Mary had accepted 

responsibility for assisting Carter with acts for which “[o]ne would not normally expect 

an able-bodied and fully competent adult to depend on another.” (Winn, supra, 63 

Cal.4th at p. 158.)

We see no reason why the facts that the decision to allow Dr. Denton and Dr. 

Ashtiani to sign the consent to the pacemaker surgery in Carter’s stead was made in a 

setting that was more like a conference room than an examination room, or that St. Mary 

sought advice from counsel rather than from a doctor other than Dr. Denton, must mean 

that the ethics committee meeting served a noncustodial function. After all, “it is the 

defendant’s relationship with an elder or a dependent adult—not the defendant’s 
25

professional standing or expertise—that makes the defendant potentially liable for 

neglect.” (Winn, supra, 63 Cal.4th at p. 158.) For these reasons, Winn better supports the 

conclusion that the majority of St. Mary’s interactions with decedent were custodial. St. 

Mary has cited no authority allowing or even encouraging a court to assess care and 

custody status on a task-by-task basis, and the Winn court’s focus on the extent of 

dependence by a patient on a health-care provider rather than on the nature of the 

particular activities that comprised the patient-provider relationship counsels against 

adopting such an approach.

In support of its position that the ethics committee meeting was simply an 

administrative task that cannot constitute neglect under the Act, St. Mary relies heavily 

on Covenant Care. There, the court wrote: “As used in the Act, neglect refers not to the 

substandard performance of medical services but, rather, to the ‘failure of those 

responsible for attending to the basic needs and comforts of elderly or dependent adults, 

regardless of their professional standing, to carry out their custodial obligations.’ 

[Citation.] Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of 

medical services, but of the failure to provide medical care.” (Covenant Care, supra, 32 

Cal.4th at p. 783, original italics; see Worsham v. O'Connor Hospital (2014) 226 

Cal.App.4th 331, 337-338.) St. Mary argues that conducting the ethics committee 

meeting amounts to the “undertaking of medical services” and is therefore not actionable 

on an elder abuse theory. Because this holding from Covenant Care occurred in the 

context of explaining the difference between claims under the Act and claims of “simple 
26

or gross negligence by health care providers,” another way of phrasing St. Mary’s 

contention is that, even if everything Stewart alleges is true with respect to St. Mary’s 

treatment of Carter, the most she can prove is that St. Mary committed ordinary medical 

malpractice.9 Any such suggestion is incorrect for the following reasons.

First, we are troubled that labeling this case one for no more than professional 

negligence seriously undervalues the interest Carter had in consenting or objecting to the 

surgery that, in the opinion of Stewart’s experts, contributed to his death. “More than a 

century ago, the United States Supreme Court declared, ‘No right is held more sacred, or 

is more carefully guarded, by the common law, than the right of every individual to 

possession and control of his own person, free from all restraint or interference of others, 

unless by clear and unquestionable authority of law. . . . “The right to one’s person may 

be said to be a right of complete immunity: to be let alone.” [Citation.]’ [Citation.] 

Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this 

precept of personal autonomy in observing, ‘Every human being of adult years and sound 

mind has a right to determine what shall be done with his own body. . . .’ [Citation.] 

And over two decades ago, Justice Mosk reiterated the same principle for this court: ‘[A] 

person of adult years and in sound mind has the right, in the exercise of control over his 

body, to determine whether or not to submit to lawful medical treatment.’ ” (Thor v. 

Superior Court (1993) 5 Cal.4th 725, 731 (Thor).)

 

9

 In fact, after petitioner’s counsel responded to the tentative ruling with respect 

to the cause of action for elder abuse at the hearing in the trial court, counsel for St. Mary 

stated: “What counsel just finished describing was a rock-solid case for professional 

negligence.”
27

This right, the right to personal autonomy, is the right St. Mary denied Carter by 

authorizing Dr. Ashtiani and Dr. Denton to sign the consent for the pacemaker on 

Carter’s behalf. This form was signed not only without Carter’s consent, but over the 

objection of his designee. The California Supreme Court has described the right to 

consent to medical treatment as “ ‘basic and fundamental,’ ” “intensely individual,” and 

“broadly based.” (Thor, supra, 5 Cal.4th at pp. 735-736, 741.) The same court has also 

emphasized that excusing the patient from a judicial proceeding regarding a surgery to be 

performed over his objection “denie[s] fundamental due process.” (Id. at p. 733, fn 2.) It 

is immaterial that a doctor has said the treatment is required to save the patient’s life.10 

(Id. at p. 739.) Rather, “ ‘A doctor might well believe that an operation or form of 

treatment is desirable or necessary, but the law does not permit him to substitute his own 

judgment for that of the patient by any form of artifice or deception.’ ” (Id. at p. 736, 

fn. omitted.) Finally, the patient’s reasons for refusing are irrelevant. “For selfdetermination to have any meaning, it cannot be subject to the scrutiny of anyone else’s 

conscience or sensibilities.” (Id. at p. 741.)

Here, it is undisputed that St. Mary authorized a surgery without the consent of 

either Carter or Stewart. It is also undisputed that St. Mary gave no notice of the ethics 

committee meeting to Carter or Stewart, and that it gave Stewart no notice that the

 

10

 “Particularly when the restoration of normal health and vitality is impossible, 

only the person whose moment-to-moment existence lies in the balance can resolve the 

difficult and uniquely subjective questions involved. Regardless of the consequences, the 

courts, the medical profession, and even family and friends must accept the decision with 

understanding and compassion.” (Thor, supra, 5 Cal.4th at p. 741, fn. omitted.) 
28

surgery was going to occur. Even if the reasonableness of Stewart’s objection were 

something St. Mary could have taken into account when deciding to void Stewart as 

Carter’s designee, there are triable issues of material fact on this issue. Stewart was not 

an uneducated patient objecting to a procedure without explanation; instead, at the time 

of Carter’s pacemaker surgery, she was a registered nurse, with knowledge of Carter’s 

history, whom he had chosen repeatedly as the designee of his power of attorney, and 

who requested a second opinion and suggested a specific possible alternative cause for 

the gaps in Carter’s heartbeat. Moreover, there is evidence Dr. Yelamanchili agreed that 

Carter’s sleep apnea might have been causing the problems that concerned Dr. Denton, 

and Dr. Nguyen and Dr. Noori testified that the pacemaker was not medically necessary. 

We have difficulty concluding that the deprivation of a right as important as personal 

autonomy, if in fact St. Mary is found to have deprived Carter of that right, cannot

amount to more than professional negligence in the context of this case.

In a related contention, and relying exclusively on Cobbs v. Grant (1972) 8 Cal.3d 

229, 239-240 (Cobbs), St. Mary argues the most Stewart can have proved is a cause of 

action for failure to obtain informed consent, which is a type of negligence claim. 

However, the type of claim Cobbs described in sounding in simple negligence was one in 

which a patient consents to a procedure but later argues the consent was ill-informed due 

to undisclosed risks. (Id. at pp. 239-240.) “The battery theory should be reserved for 

those circumstances when a doctor performs an operation to which the patient has not 

consented.” (Id. at p. 240.) That standard is undeniably met here, which confirms our 
29

conclusion that Stewart has alleged and proved something more than a potential medical 

malpractice claim.

Furthermore, we find the facts Stewart has alleged and proved could support not 

just some formless cause of action that is something more than professional negligence, 

but a cause of action for elder abuse, specifically. Any of the following three theories 

supports this conclusion.

First, if Stewart proves to a jury that St. Mary failed to “exercise that degree of 

care that a reasonable person in a like position would exercise” with respect to Carter

(Welf. & Inst. Code, § 15610.57, subd. (a)(1)), she will have shown that it engaged in 

actions that constitute neglect under the Act.11 The above described evidence from 

Stewart creates triable issues of material fact regarding whether St. Mary appropriately 

respected Carter’s right to personal autonomy, and we have discussed the fundamental 

nature of that right in detail. St. Mary has offered, and we have found, no reason why a 

reasonable jury could not find that St. Mary was therefore unreasonable in discharging its 

custodial obligations to Carter within the meaning of the Act. 

In addition, a reasonable jury could find St. Mary committed neglect of an elder 

within two of the specific categories described by statute. Neglect under the Act can 

 

11

 While the Act gives more specific examples of the types of acts that constitute 

neglect of an elder, this list is nonexhaustive. (Welf. & Inst. Code, § 15610.57, 

subd. (b).) We have found little discussion of the parameters of this catchall category in 

the elder abuse cases we have read, but we presume the Legislature created it for a 

purpose. That the right to autonomy possesses the type of fundamental importance we 

have described makes it easier to conclude that this is a case that appropriately falls 

within the catchall provision.
30

include, among other things, the “[f]ailure to provide medical care for physical and 

mental health needs” (Welf. & Inst. Code, § 15610.57, subd. (b)(2)) and the “[f]ailure to 

protect from health and safety hazards” (id., subd. (b)(3)). As discussed ante, the right to

personal autonomy regarding medical decisions is fundamental. (Thor, supra, 5 Cal.4th 

at p. 741; see also Conservatorship of Wendland (2001) 26 Cal.4th 519, 532 [Thor

recognized fundamental right in the common law; later cases find the same right derives 

from the California Constitution].) It seems to us, then, that respecting the patient’s right 

to consent or object to surgery is a necessary component of “provid[ing] medical care for 

physical and mental health needs.” (Welf. & Inst. Code, § 15610.57, subd. (b)(2).) 

Conversely, depriving a patient of the right to consent to surgery could constitute a 

failure to provide a necessary component of what we think of as “medical care.”

Finally, we think a reasonable jury could find St. Mary “fail[ed] to protect [Carter] 

from health and safety hazards” (Welf. & Inst. Code, § 15610.57, subd. (b)(3)) by 

authorizing the surgery in the way it did. Dr. Pietrefesa, who has over a decade’s 

experience as the head of a hospital ethics committee, characterized the ethics committee 

meeting that occurred here as a “sham” and stated St. Mary needed a court order to 

authorize a surgery over Stewart’s objection. According to Dr. Pietrafesa, the 

requirement for a court order is a “safeguard [that] is in place to protect the patient from 

the abuse that occurred in this case.” Dr. Pietrafesa also concluded that St. Mary “was 

required to have representation from Maxine Stewart and/or a representative from the 

patient present at the meeting to present all the facts pertinent to the decision to ignore the 
31

legally binding consent document executed by [Carter].” St. Mary’s only evidence on the 

ethics of the procedure it followed comes from the declaration of Ransbury, a nurse,12

who concluded that Dr. Ashtiani and only Dr. Ashtiani had a duty to tell Stewart about 

the surgery; she offered no opinion about whether St. Mary should have told Carter or 

Stewart that it planned to consider the validity of the power of attorney at an ethics 

committee meeting. There are at least triable issues of material fact regarding whether St. 

Mary’s decision to authorize the surgery, without notice to Stewart and over her objection 

and request for a second opinion, failed to adequately protect Carter from health and 

safety hazards.

For the foregoing reasons, we find Stewart has at least shown the existence of 

triable issues of material fact regarding whether custodial neglect within the meaning of 

the Act occurred when St. Mary authorized Carter’s pacemaker surgery over Stewart’s 

objection. We now turn to whether she has produced enough evidence that St. Mary “has 

been guilty of recklessness, oppression, fraud, or malice in the commission of this” 

neglect, so as to entitle her to the Act’s enhanced remedies. (Welf. & Inst. Code, 

§ 15657.) Our task is made easier by the fact that we conclude, post, that the trial court 

erred in summarily adjudicating the cause of action for fraudulent concealment. St. Mary 

offers no reason why Stewart will have failed to have proved the required state of mind 

should that eventuality occur. 

 

12

 Stewart objected in the trial court that Ransbury lacked foundation to opine 

about the committee meeting, but the trial court failed to rule on her objection. Because 

Stewart does not argue the merits of her objections here, we do not pass on this issue.
32

We also conclude there are triable issues of material fact regarding whether St. 

Mary’s actions qualified as reckless. “Recklessness, unlike negligence, involves more 

than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but 

rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of 

the serious danger to others involved in it.’ ” (Delaney v. Baker (1999) 20 Cal.4th 23, 

31-32 (Delaney).) 

We find uncontroversial the idea that any surgery on a 78-year-old man who has 

been admitted to the hospital in such a state that St. Mary looked to his designee for 

consent is potentially dangerous, and testimony from Dr. Noori, Dr. Nguyen, and Dr. 

Rajan supports Stewart’s assertion that the surgery was never necessary. Also, and as 

discussed ante, the evidence shows there are triable issues of material fact regarding 

whether St. Mary adequately protected Carter from health and safety hazards when it 

authorized the surgery without the participation of Stewart or anyone “from [Carter’s] 

side,” even though it knew Stewart had offered an alternative explanation for the gaps in 

Carter’s heartbeat and requested a second opinion on that issue. St. Mary’s suggestion 

that it cannot be punished for listening to the advice of a doctor in good standing at the 

hospital fails to account for its decision to structure the ethics committee meeting in an 

entirely one-sided manner. (See Covenant Care, supra, 32 Cal.4th 771, 778 [elder abuse 

plaintiffs alleged defendants concealed the deterioration of patient’s condition]; see also 

Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 
33

[enhanced remedies warranted in Covenant Care in part because skilled nursing facility 

“misrepresented and failed to inform [patient’s] children of his true condition”].)

For the foregoing reasons, the trial court erred in summarily adjudicating Stewart’s 

cause of action for elder abuse. At oral argument, St. Mary’s counsel expressed concern 

that our holding, especially with respect to the care and custody issue, will be interpreted 

to mean that any act of negligence by a hospital will constitute elder abuse. We share no 

such fear, since “ ‘ “cases are not authority for propositions not considered.” ’ ” (Loeffler 

v. Target Corp. (2014) 58 Cal.4th 1081, 1134.) First, and as we have stressed 

throughout, the right to autonomy in medical decision-making is uniquely fundamental; 

we offer no opinion about how this petition would have resolved had Stewart alleged a 

violation of a lesser right. Second, we were careful to describe the evidence introduced 

by the parties on summary judgment in detail, to focus our inquiry on where and how 

Stewart’s evidence created triable issues of material fact, and to stress that it is the jury’s 

role to determine the extent of St. Mary’s role in the pacemaker surgery Dr. Ashtiani 

performed on Carter. As we explained ante, when reviewing summary adjudication 

orders we “ ‘must “consider all of the evidence” and “all” of the “inferences” reasonably 

drawn therefrom [citation], and must view such evidence [citations] and such inferences 

[citations], in the light most favorable to the opposing party.’ ” (Intrieri, supra, 117 

Cal.App.4th at p. 81.) We have done so, and we have explained our views about how the 

rules on which we rely apply to the evidence submitted with the summary judgment 

motion. We need not make a prediction about how a court should rule in the future when
34

asked to apply today’s holding to a set of facts that is missing any of the elements that are 

present here.

2. The trial court erred in summarily adjudicating the cause of action for 

fraudulent concealment

Stewart argues the trial court erred in summarily adjudicating her cause of action 

for fraudulent concealment on the sole ground that, based on the reasoning in Moore v. 

Regents of University of California (1990) 51 Cal.3d 120, 133 (Moore), St. Mary did not 

owe Carter a fiduciary duty. As we now explain, we agree.

“ ‘ “[T]he elements of an action for fraud and deceit based on concealment are: 

(1) the defendant must have concealed or suppressed a material fact, (2) the defendant 

must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must 

have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, 

(4) the plaintiff must have been unaware of the fact and would not have acted as he did if 

he had known of the concealed or suppressed fact, and (5) as a result of the concealment 

or suppression of the fact, the plaintiff must have sustained damage.” ’ ” (Boschma v. 

Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) A duty to disclose will arise: 

“ ‘(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the 

defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when 

the defendant actively conceals a material fact from the plaintiff; and (4) when the 

defendant makes partial representations but also suppresses some material facts.’ ” 

(LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (LiMandri).)
35

St. Mary argues it cannot be liable for fraudulent concealment because it owed 

Carter no fiduciary duty under Moore. We question the applicability of Moore to this 

case. There, a leukemia patient alleged causes of action against his physician and, among 

others, a hospital for “using his cells in potentially lucrative medical research without his 

permission.” (Moore, supra, 51 Cal.3d at pp. 124-125.) The court found these 

allegations stated causes of action for breach of fiduciary duty and/or lack of informed 

consent against the physician, Golde. (Id. at pp. 128-129.) With respect to the other 

defendants, the court stated simply, without analysis or citation to authority: “In contrast 

to Golde, none of these defendants stood in a fiduciary relationship with Moore or had 

the duty to obtain Moore’s informed consent to medical procedures. If any of these 

defendants is to be liable for breach of fiduciary duty or performing medical procedures 

without informed consent, it can only be on account of Golde’s acts and on the basis of a 

recognized theory of secondary liability, such as respondeat superior.” (Id. at p. 133.) 

Participating in a process that allegedly failed to respect a patient’s right to personal 

autonomy seems very different in kind, for purposes of fiduciary duty analysis, from 

failing to disclose profits earned from a patient’s discarded tissue. (See Delaney, supra, 

20 Cal.4th at p. 33 [purpose of the Act “is essentially to protect a particularly vulnerable 

portion of the population from gross mistreatment in the form of abuse and custodial 

neglect.”].)
36

We need not decide whether St. Mary owed Carter a fiduciary duty, however, 

because a fiduciary duty is not the only circumstance giving rise to a duty to disclose.13 

As we have already established, St. Mary also had a duty to disclose if it had sole 

knowledge of material facts not known to Stewart, actively concealed at least one 

material fact from her, or made a partial representation but suppressed at least one 

material fact. (LiMandri, supra, 52 Cal.App.4th at p. 336.) Our independent review of 

the record indicates there are triable issues of material fact regarding each of these 

theories.14 St. Mary knew it had authorized a pacemaker surgery to proceed over 

Stewart’s objection because it made this the “action plan” after the ethic committee 

meeting, and it knew it did not inform Stewart about the surgery. St. Mary also knew of 

Stewart’s objection to the pacemaker procedure, and it chose to tell her about neither the 

ethics committee meeting nor the upcoming surgery. The cause of action for fraudulent 

concealment does not fail for lack of duty to disclose.

 

13

 St. Mary argues Stewart only alleged it failed to disclose the date of the surgery 

in her operative pleading and may not now allege it also committed fraudulent 

concealment by failing to disclose the scheduling of the ethics committee meeting. Even 

if the complaint must be read so sparingly, the distinction makes no difference to our 

analysis.

14

 “ ‘Although the determination of duty is primarily a question of law, its 

existence may frequently rest upon’ ” the nature and extent to which a plaintiff proves the 

facts allegedly creating a duty to be true. (Silva v. Union Pacific Railroad Co. (2000) 85 

Cal.App.4th 1024, 1029.) Here, we say there are triable issues of material fact regarding 

the existence of a duty because whether such a duty exists depends on the nature and 

extent of Stewart’s proof of the facts we are about to summarize. At present, we find 

only that she has presented enough evidence to take the issue to a jury.
37

Nor does it fail, as St. Mary argues, for lack of proof of fraudulent intent, as we 

find no gap in the evidence on this issue. The trial court denied Dr. Denton’s motion for 

summary adjudication of this claim because it found there were triable issues of material 

fact regarding whether “the failure to inform Stewart the surgery would occur was an 

intentional effort to conceal the scheduling of the surgery.” It appears much the same 

analysis applies to St. Mary, which is the party that actually made the decision not to 

advise Stewart of the ethics committee.

Although Dr. Denton was the only clinical person who took part in the first ethics 

committee meeting, we think it fair to infer that the risk management team would have 

reviewed the doctor’s notes contained in its own file on Carter; otherwise, it seems the 

ethics committee meeting would have no purpose but to simply rubber stamp whatever 

procedure Dr. Denton recommended. To at least some readers, these notes will likely 

reflect an increasing level of animosity between Stewart and Dr. Denton, with Carter’s 

admission note indicating his home environment was “fairly supportive,” while a note 

from a consultation only five or six days later said Dr. Denton wanted Carter observed 

while his family was with him. This second note memorialized a consultation in which 

Dr. Denton “extensive[ly]” discussed his recommendation for placement of a g-tube, and 

Stewart still said she did not want one. It is a reasonable inference that conflicts such as 

these are what led to the involvement of Adult Protective Services, which was, according 

to a doctor’s note by Dr. Denton, “anxiously awaiting” an interview with him. In 

addition, a note from Dr. Yemanchili indicated there may have been some merit to 
38

Stewart’s suggestion that Carter be treated for sleep apnea before a surgery occurred. 

Since the discussion about Carter’s power of attorney reached St. Mary’s CEO, it appears 

multiple layers of people at the hospital had a reason to read these notes, if they intended 

to conduct a fair and adequate review before making an ethics committee decision. To a 

reasonable jury, these notes might be an indication that St. Mary ignored cause for 

concern about Dr. Denton’s impartiality. 

In addition, Bunch, who is a director of risk management, knew Dr. Denton’s 

response when she told him of the action plan was that his “posterior was covered,” as 

well as that his response to Stewart’s request for a second opinion was simply, “I won’t 

do that.” Finally, St. Mary knew Dr. Denton made some kind of allegation that Stewart 

had a financial motive for refusing to consent to the pacemaker surgery because, at the 

ethics committee meeting, Perring-Mulligan had to “shut that down” when Dr. Denton 

broached the topic. Again, a jury could infer that St. Mary had particular reason to 

ensure that Stewart was involved in the process of authorizing the pacemaker surgery, or 

that she had notice that a surgery had been scheduled, but instead deliberately decided to 

exclude her from the process.

Perhaps a reasonable jury would view these facts and think St. Mary was 

innocently blindsided by a misguided doctor, as St. Mary’s response implies. But it 

seems to us a reasonable jury could instead conclude that St. Mary intentionally 

concealed the surgery because it and Dr. Denton had become weary of Stewart’s habit of 

refusing what Dr. Denton thought was necessary treatment. In other words, there are 
39

triable issues of material fact regarding St. Mary’s intent in concealing facts from 

Stewart, just as there are regarding its duty to disclose those same facts. The trial court 

therefore erred in summarily adjudicating the fraudulent concealment claim.

3. The trial court erred in summarily adjudicating the cause of action for 

medical battery

The trial court summarily adjudicated the cause of action for medical battery 

solely because Dr. Ashtiani, not St. Mary, actually performed the pacemaker surgery. 

Petitioner argues there are triable issues of material fact regarding St. Mary’s connection 

to the surgery. We again agree.

“Battery is an offensive and intentional touching without the victim’s consent.” 

(Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645 (Kaplan).) The elements of a 

cause of action for medical battery are: (1) That the defendant either performed a 

medical procedure without the patient’s consent or performed a medical procedure that is 

substantially different from one to which the plaintiff consented; (2) that the plaintiff 

suffered harm; and (3) that the defendant’s actions were a substantial factor in causing the 

plaintiffs’ harm. (CACI No. 530A.) 

The record in this case belies St. Mary’s suggestion that it had no connection to 

the performance of the surgery simply because Dr. Ashtiani, an independent contractor, 

made that decision. As we have already described in footnote 8, ante, Dr. Denton and 

Dr. Ashtiani both testified that the decision of the ethics committee was the event that 

allowed the surgery to occur. Moreover, Dr. Ashtiani’s comment in the postoperative 
40

report—“I need to mention, the consent was signed by two physicians which was 

advocated through risk management, myself, and Dr. Denton”—could easily be 

interpreted to mean that St. Mary specifically advised Dr. Ashtiani to sign the consent 

form, without which the surgery likely could not proceed at all.

Neither party has cited authority defining how distant the connection a defendant 

has to the touching that occurs when a doctor performs surgery, to which the patient has 

not consented, may be before the plaintiff loses a right to a cause of action for medical 

battery. “In the absence of any definitive case law [setting the boundary St. Mary 

asserts], we conclude the matter is a factual question for a finder of fact to decide.” 

(Kaplan, supra, 162 Cal.App.4th at p. 647.) There are triable issues of material fact 

regarding whether St. Mary was sufficiently involved in the process of allowing the 

pacemaker surgery on Carter to have “performed a medical procedure” within the 

meaning of CACI No. 503A.

DISPOSITION

Let a peremptory writ of mandate issue, directing the Superior Court of San 

Bernardino County to vacate the October 3, 2016 order granting summary adjudication of 

Stewart’s causes of action for elder abuse, fraudulent concealment, and medical battery, 

and to substitute an order denying the motion as to those causes of action. The temporary 

stay we issued is to dissolve upon the filing of this opinion. 
41

Stewart is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of 

service on all parties.

Petitioner is awarded her costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.