Filed 4/8/21 Galvin v. Vu CA4/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

COLLEEN M. GALVIN,

 Plaintiff and Appellant,

v.

VAN HUY VU et al.,

 Defendants and Respondents.

 G058502

 (Super. Ct. No. 30-2017-00906995)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Linda S. 

Marks, Judge. Reversed in part and affirmed in part.

Khouri Law Firm, Michael J. Khouri and Michael Tran for Plaintiff and 

Appellant.

Doyle Schafer McMahon, Raymond J. McMahon and Alexander Farkas for 

Defendants and Respondents.
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Plaintiff Colleen M. Galvin appeals from a summary judgment entered 

against her and in favor of defendants Van Huy Vu and Van Huy Vu, M.D. Inc. Plaintiff 

argues defendants could not achieve summary judgment via summary adjudication on all 

three of plaintiff’s causes of action because defendants’ earlier summary judgment 

motion raising the same issues was denied. Plaintiff also argues the court erred on the 

merits of the summary adjudication motion because (1) triable issues of fact exist as to 

the elements of plaintiff’s Labor Code section 2802 (section 2802) cause of action, and 

(2) the court failed to properly credit plaintiff’s testimony contradicting defendants’

expert on plaintiff’s implied contractual indemnity and negligence causes of action.

We conclude the trial court did not abuse its discretion by entertaining 

defendants’ summary adjudication motion. We also conclude the court correctly granted 

summary adjudication on plaintiff’s implied contractual indemnity and negligence causes

of action but erred in granting summary adjudication on plaintiff’s section 2802 cause of 

action. Consequently, we reverse in part and affirm in part. 

FACTS AND PROCEDURAL HISTORY

Plaintiff is a physician assistant who performed services for defendants at 

their pain management clinic. Plaintiff was later charged by California’s Physician 

Assistant Board (the Board) with breach of the standard of care. In connection with her 

defense of those charges, plaintiff alleged she incurred attorney fees and suffered other 

damages.

Plaintiff sued defendants, alleging the charges brought by the Board against 

her were solely the result of work she performed for defendants. Plaintiff sought 

indemnity for her attorney fees and other damages under section 2802, as well as under 

an implied contractual indemnity theory. Plaintiff also sought damages based on a simple 

negligence theory under the same facts.

In response, defendants moved for summary judgment. Defendants

addressed each cause of action separately. On plaintiff’s section 2802 cause of action, 
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defendants argued plaintiff’s expenditures were not “necessarily incur[red]” in the 

discharge of her duties, and plaintiff was not an employee. On plaintiff’s implied 

contractual indemnity cause of action, defendants argued they did not breach their 

contract with plaintiff, and the cause of action was barred by the applicable statute of 

limitations. On plaintiff’s negligence cause of action, defendants argued it was barred by 

the statute of limitations, and also contended defendants owed no duty to plaintiff beyond 

their contractual duties, plaintiff’s damages were not foreseeable, and lack of causation 

based on the contention the Board’s charges arose from plaintiff’s work for other doctors. 

Defendants also argued plaintiff lacked standing to bring the lawsuit, because plaintiff 

sued in her individual capacity, but had provided services to defendants through a sincedissolved corporation.

The court denied defendants’ motion for summary judgment. In analyzing 

the section 2802 cause of action, the court found defendants had failed to present 

evidence addressing plaintiff’s alleged employment relationship. Because the motion 

was brought solely for summary judgment instead of summary adjudication, the court 

declined to analyze any other issues, concluding defendants’ failure to defeat the section 

2802 cause of action doomed the entire motion.

Defendants moved for reconsideration, arguing the court had only 

considered one of its two arguments on the section 2802 cause of action. The court 

denied the motion for reconsideration, concluding “the sole basis upon which 

Defendant[s] sought judgment against the [section 2802] [c]ause of [a]ction, was 

Plaintiff’s employment relationship.”

Defendants then moved for summary adjudication of each of the three 

causes of action. On plaintiff’s section 2802 cause of action, defendants now argued lack 

of causation, claiming plaintiff’s damages were the result of her acts performed after she 

stopped working for defendants. On plaintiff’s implied contractual indemnity cause of 

action, defendants again argued they had not breached the contract, and repeated their 
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causation arguments. On plaintiff’s negligence cause of action, defendants repeated their

arguments from their original summary judgment motion. Defendants also reasserted 

their theory that plaintiff lacked standing.

In support of their motion, defendants filed a declaration by an expert 

witness, who testified defendants met the standard of care, and the Board would not have 

filed serious charges against plaintiff absent the deaths of two patients, both of whom 

plaintiff also treated while working for other physicians after the patients left defendants’

care. Even though defendants’ second motion sought only summary adjudication, 

defendants also filed a proposed judgment along with the motion, presumably because 

the motion challenged all three of plaintiff’s causes of action.

Plaintiff opposed the summary adjudication motion, making the same 

substantive arguments she made in opposition to defendants’ motion for summary 

judgment. Plaintiff also argued defendants were prohibited by Code of Civil Procedure 

section 437c, subdivision (f)(2) (section 437c(f)(2)) from seeking summary adjudication 

based on issues already asserted in their previous motion for summary judgment. 

Plaintiff did not file an expert declaration in opposition.

This time, defendants prevailed. The court found defendants’ motion fell 

outside the scope of section 437c(f)(2) because it was a summary adjudication motion 

following a summary judgment motion (not vice versa). The court also found the motion 

fell outside Code of Civil Procedure section 1008 (section 1008), subdivision (b)’s 

prohibition on motions for reconsideration because it sought summary adjudication of 

individual claims instead of summary judgment.

On the negligence cause of action, the court found defendants’ unrebutted 

expert testimony established defendants did not breach the standard of care. On the

implied contractual indemnity cause of action, the court applied the same reasoning, as 

the implied contractual agreement alleged by plaintiff required defendants only to 

supervise plaintiff “as required by the standard of medical practice in the community.” 
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On the section 2802 cause of action, the court concluded plaintiff conceded her cause of 

action was “derivative in nature to her other causes of action,” and reasoned the 

undisputed evidence that defendants did not breach the standard of care barred plaintiff’s 

claim, as did defendants’ expert’s testimony that plaintiff’s damages had “less to do with 

[defendants’] supervision and more to do with her independent conduct . . . .”

Because the court granted summary adjudication on all three causes of 

action, the motion disposed of the entire case, and the court entered judgment for 

defendants. Plaintiff appealed from the judgment.

DISCUSSION

1. Summary Adjudication After Denial of Summary Judgment

Plaintiff argues section 437c(f)(2) and section 1008 should have prevented 

the court from even considering defendants’ summary adjudication motion because it 

raised the same arguments as defendants’ earlier denied summary judgment motion. 

In response, defendants contend section 437c(f)(2) only prohibits a

summary judgment motion following a denied summary adjudication motion, not a 

summary adjudication motion following a denied summary judgment motion, citing 

Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72 

(Nieto). We review this question of statutory interpretation de novo. (Redondo Beach 

Waterfront, LLC v. City of Redondo Beach (2020) 51 Cal.App.5th 982, 993.) 

Defendants also argue section 1008 does not bar the relief requested by 

their summary adjudication motion because it differs sufficiently from the relief 

requested by their summary judgment motion. We review the court’s resolution of this 

issue in plaintiff’s favor for abuse of discretion. (California Correctional Peace Officers 

Assn. v. Virga (2010) 181 Cal.App.4th 30, 42.)

A. Section 437c(f)(2) Does Not Apply.

Section 437c(f)(2) states in relevant part “A party shall not move for 

summary judgment based on issues asserted in a prior motion for summary adjudication 
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and denied by the court unless that party establishes, to the satisfaction of the court, 

newly discovered facts or circumstances or a change of law supporting the issues 

reasserted in the summary judgment motion.” On its face, the plain language of this 

portion of the statute only prohibits moving for summary judgment after a motion for 

summary adjudication is denied and not vice versa. 

None of the cases cited by the parties or revealed by our own research 

squarely contradicts the plain language of the statute. In Bagley v. TRW, Inc. (1999) 73 

Cal.App.4th 1092, 1096 fn.3 (Bagley), the court described section 437c(f)(2) as a 

“prohibition against repeated summary judgment motions,” and held only that successive

motions for summary judgment (as distinguished from summary adjudication) “must be 

decided by the specific requirements of the summary judgment statute [section 

437c(f)(2)], not the general provisions of the reconsideration statute [section 1008].”

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Similarly, in Patterson v. Sacramento City Unified School Dist. (2007) 155 

Cal.App.4th 821, 827 (Patterson) the court applied section 437c(f)(2) to a “second 

summary judgment motion,” and ultimately ruled only that the second motion was 

sufficiently different from the first, so it was permitted under section 437c(f)(2).

The case cited by defendants, Nieto, also applied section 437c(f)(2) to a 

repeated summary judgment situation like Patterson and Bagley. But in dicta, Nieto also

directly addressed the statutory interpretation issue presented here.

The Nieto court explained: “Even setting aside that [the] motion for 

summary judgment falls outside the scope of [section 437c(f)(2)], as the prior motion was 

one for summary judgment rather than summary adjudication, the trial court properly 

1

 On this point Bagley was quoted with approval by the California Supreme Court 

in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1099 as follows: “One court has said that 

cases involving repeated summary judgment motions ‘must be decided by the specific 

requirements of the summary judgment statute [section 437c], not the general provisions 

of the reconsideration statute [section 1008].’ [Citations] This conclusion certainly 

seems logical.” 
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exercised its discretion in determining that this provision did not bar summary judgment 

because the operative motion addressed an issue not raised by the prior motion.” (Nieto,

supra, 181 Cal.App.4th at p. 72.)

The legislative history also sheds no light on the question of whether 

section 437c(f)(2) applies to a motion for summary adjudication after a motion for 

summary judgment is denied. It merely recites the statement of purposes (efficiency &

avoidance of abuses) noted by the court in Bagley, and that section 437c(f)(2) was 

enacted as one part of a set of modifications to the summary adjudication rules.

For these reasons, we agree with the dicta in Nieto and conclude the plain 

language in section 437c(f)(2) means what it says: it only bars a motion for summary 

judgment brought after a motion for summary adjudication is denied. Here, defendants

brought their motions in the reverse order, so section 437c(f)(2) does not apply.

B. The Court Did Not abuse Its Discretion.

Section 1008, subdivision (b) forbids a party from making a second 

application or motion for the same order requested in an earlier motion or application, 

absent a showing of “new or different facts, circumstances, or law. . . .” (Code Civ. 

Proc., § 1008, subd. (b).)

Here, the court determined the two motions did not seek the same order as 

forbidden by section 1008, because the first motion sought summary judgment, while the 

second sought summary adjudication. We agree. Accordingly, the court did not abuse its 

discretion by entertaining defendants’ subsequent motion for summary adjudication.

2. Plaintiff’s Section 2802 Cause of Action

On the merits, plaintiff argues her first cause of action under section 2802 

should have survived defendants’ motion for summary adjudication, because there are 

triable issues of material fact. We are persuaded.

Section 2802, subdivision (a), states “An employer shall indemnify his or 

her employee for all necessary expenditure or losses incurred by the employee in direct 
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consequence of the discharge of his or her duties, or of his or her obedience to the 

directions of the employer, even though unlawful, unless the employee, at the time of 

obeying the directions believed them to be unlawful.” 

Plaintiff contends there are two elements of her cause of action arising from 

this statute: (1) plaintiff was employed by defendants and (2) the losses incurred by 

plaintiff were a direct consequence of the discharge of her duties. Plaintiff argues a 

triable issue of fact exists as to each of these two elements.

Defendants concede a triable issue of fact exists as to whether plaintiff was 

employed by defendants. But defendants argue the unrebutted expert declaration 

submitted with their motion established that plaintiff’s own acts were the “actual cause of 

her damages.”

The trial court similarly concluded plaintiff “failed to adhere to proper 

protocol in prescribing medications having less to do with [defendants’] supervision and 

more to do with her independent conduct,” though the court also rejected defendants’

expert’s opinions regarding the actions of the Board as lacking foundation. The court

also found plaintiff conceded her first cause of action was derivative of her other causes 

of action (for negligence & implied contractual indemnity) because her response to a 

portion of the separate statement of undisputed facts asserted defendants’ alleged failure 

to adequately supervise her as a ground for liability.

“The test for recovery under [Labor Code] section 2802 is whether the 

conduct defended against was within the course and scope of employment.” (Jacobus v. 

Krambo Corp. (2000) 78 Cal.App.4th 1096, 1101.) It is undisputed that plaintiff treated 

some of the patients discussed in the Board’s charging document while working for 

defendants. Consequently, a triable issue of fact exists as to whether at least some 

portion of the conduct raised by the Board against plaintiff was within the course and 

scope of plaintiff’s employment by defendants.
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It makes no difference whether defendants adequately supervised plaintiff 

or whether the accusations against plaintiff arise from her “independent conduct” after 

many years of experience. The only possible counterargument—that plaintiff would not 

have been charged by the Board absent additional intervening or superseding negligence 

performed outside her employment by defendants—is foreclosed by the court’s rejection 

of defendants’ expert declaration on this point. And we agree with the trial court: the 

expert’s prediction that, absent plaintiff’s later conduct outside defendants’ employ, the 

Board would not have charged plaintiff lacks foundation and is speculative.

Defendants also argue allowing plaintiff’s cause of action to survive would 

create “new law that would dramatically increase the costs to all professional or licensed 

services.” Defendants claim employers, including specifically the Regents of the 

University of California, would be forced to pay for licensing disputes, teacher discipline, 

driving infractions, and other costs. 

There are at least two problems with this argument. First, as to defendants’

specific example, section 2802 simply does not apply to the Regents of the University of 

California. (In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 343-344.) Second, 

much of defendants’ parade of horribles would in any event fall outside the statute 

because it does not require reimbursements of costs incurred by an employee as a result 

of unlawful acts the employee knows to be unlawful, such as typical traffic violations. 

We therefore decline to read a new exception into section 2802 for costs of 

responding to professional discipline. It follows the court erred in granting summary 

adjudication on plaintiffs section 2802 cause of action.

3. Plaintiff’s Implied Contractual Indemnity Cause of Action

Plaintiff argues her second cause of action for implied contractual 

indemnity should also have survived summary adjudication because her deposition 

testimony contradicted defendants’ expert’s opinion that defendants met the standard of 

care. We disagree.
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As the trial court correctly noted, “[g]enerally, expert testimony is required 

to establish the standard of care that applies to a professional.” (Sanchez v. Brooke

(2012) 204 Cal.App.4th 126, 138.) Plaintiff did not submit an expert declaration in 

opposition to defendants’ motion and does not argue she herself is an expert. Instead, 

plaintiff suggests we should apply the “common knowledge exception,” which allows a 

plaintiff to establish the standard of care of a professional without expert opinion when 

“‘a layperson” . . . [can] say as a matter of common knowledge . . . that the consequences 

of professional treatment were not such as ordinarily would have followed if due care had 

been exercised.”’” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1543.)

The exception does not apply. The breach of the standard of care alleged 

by plaintiff is defendants’ alleged failure to supervise plaintiff, resulting in harm to 

patients, as detailed in the Board’s charges against plaintiff. While the harm to patients 

may be apparent to a layperson, only an expert can untangle whether responsibility solely 

lies with plaintiff or a failure of supervision by defendants contributed. Defendants’

expert opined defendants met the standard of care in supervising plaintiff; absent 

contradictory expert opinion, the court had no choice but to grant defendants’ motion as 

to this cause of action.

4. Plaintiff’s Negligence Cause of Action

Plaintiff argues her third cause of action for negligence should also survive 

because defendants’ legal duties are set forth in certain specified statutes and written 

regulations, which plaintiff contends excuses her failure to provide expert opinion to 

rebut defendants’ expert. Again, we disagree. The unremarkable fact that statutes and 

regulations govern certain parts of a professional’s duties does not create an exception to 

the rule that expert testimony is necessary to establish the standard of care in professional 

negligence cases. Plaintiff’s failure to provide expert opinion is fatal to her negligence 

cause of action.
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5. Standing

In addition to the arguments that prevailed before the trial court, defendants 

argue plaintiff lacks standing to assert causes of action against defendants because the 

parties to the contract under which plaintiff performed her services for defendants were 

defendants and plaintiff’s corporation Nature’s Remedies, Inc., now dissolved. Because 

we affirm the court’s summary adjudication of plaintiff’s implied contractual indemnity 

and negligence causes of action, we need only consider this argument in the context of 

plaintiff’s section 2802 cause of action.

“Every action must be prosecuted in the name of the real party in interest, 

except as otherwise provided by statute.” (Code Civ. Proc. § 367.) Section 2802 “‘gives 

an employee a right to indemnification from his or her employer.’” (Nicholas 

Laboratories, LLC v. Chen (2011) 199 Cal.App.4th 1240, 1247.) Consequently, the real 

party in interest in a section 2802 case is the aggrieved employee. As noted above, 

defendants concede a triable issue of fact exists regarding whether plaintiff was an 

employee of defendants. Therefore, a triable issue of fact exists regarding whether 

plaintiff has standing to assert rights under section 2802.
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DISPOSITION

The judgment is reversed. The order granting summary adjudication is 

reversed as to the first cause of action and affirmed as to the second and third causes of 

action. Plaintiff shall recover costs on appeal.

THOMPSON, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.