Filed 8/31/23 Nguyen v. Yee CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THUY HUYNH NHAT NGUYEN,

Plaintiff and Appellant,

v.

HENRY C. YEE et al.,

Defendants and Respondents.

B319542

(Los Angeles County

Super. Ct. No.

20STCV38798)

APPEAL from judgments of the Superior Court of Los 

Angeles County, Jill Feeney, Judge. Reversed.

Law Offices of London & Le, Victoria Le and Maria H. 

Skinner for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Nathan J. Novak; Law 

+ Brandmeyer, Kent T. Brandmeyer and Amanda Mannshahia 

for Defendants and Respondents Henry C. Yee and Long Life 

Cardiac Center, Inc.

Fraser Watson & Croutch, David M. Wright and Daniel K. 

Dik for Defendant and Respondent Xiao Liu.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

Plaintiff and appellant Thuy Huynh Nhat Nguyen sued the 

Long Life Cardiac Center, Inc. (Long Life Center), its chief 

executive officer Dr. Henry Yee, and nurse technician Xiao Liu

for medical negligence after she fell and broke her arm during a

treadmill stress test. The Long Life Center and Dr. Yee jointly 

moved for summary judgment, supported by an expert 

declaration that the defendants had met the applicable standard 

of care for performing a stress test and for the care Dr. Yee 

provided after the fall, and that defendants did not cause 

plaintiff’s injuries. Although the Long Life Center and Dr. Yee 

argued that Liu was not negligent in administering the stress 

test, Liu did not join the motion or move separately for summary 

judgment. The court granted the motion for summary judgment, 

and ordered judgment be entered in favor of all three defendants.

For the reasons set forth below, we conclude the trial court 

erred when it granted summary judgment to Liu, because she1

did not move for summary judgment or comply with the 

requirements of Code of Civil Procedure section 437c. We

additionally conclude that the expert declaration offered by 

defendants was conclusory and based on disputed facts which 

made it insufficient to establish the absence of a material fact 

issue as to breach of duty and causation. Accordingly, we reverse 

the judgments as to all defendants.

1 The brief filed by Dr. Yee and the Long Life Center refers

to Liu as male, but during argument counsel for Liu stated that

he believes Liu is female. We will defer to Liu’s counsel and refer 

to Liu accordingly.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The treadmill exercise stress test

On March 6, 2019, plaintiff went to the Long Life Center

for a diagnostic treadmill test. Plaintiff had been referred by her 

primary care physician after she “complained of sharp chest pain”

“off and on at rest and also during walking” and “dyspnea and 

palpitation during walking.” Before starting, the nurse 

technician, Liu, explained through an interpreter that the test 

involved walking on the treadmill and obtained plaintiff’s 

permission to begin the test. The interpreter left the room, 

plaintiff gave her consent for the test to start, and Liu 

communicated to a supervising physician, Dr. Htay, that the test 

was beginning. Shortly after Liu started the treadmill, plaintiff

fell.

According to a handwritten “incident report” in plaintiff’s 

medical records, when plaintiff fell Liu was able to catch her and 

“support her body.” According to plaintiff, she was walking on 

the treadmill when she started to fall. (AA 521) She tried to grab 

the handrails but lost her grip. Her chest hit the treadmill, and 

her “body rolled into the back of the treadmill” and then 

“slam[med] into the wall.” Plaintiff states that no one did 

anything to help her until she stood up on her own. Dr. Yee was 

informed of the incident, examined plaintiff, offered her Tylenol 

for pain, and arranged for an ambulance to transfer plaintiff to a 

nearby hospital. Plaintiff was diagnosed with a fractured

humerus, the large bone in her upper right arm.
4

B. Plaintiff’s complaint and defendants’ motion for 

summary judgment

On October 8, 2020, plaintiff filed a complaint alleging a 

single cause of action for “Professional Negligence” against Dr. 

Yee, the Long Life Center and “doe” defendants who were 

involved in her care. Plaintiff alleged that “the employee 

conducting the [treadmill] test increased the speed of the 

treadmill too quickly for [plaintiff] to handle, causing her to 

stumble and fall.” As a result, plaintiff alleged that she suffered 

“serious physical and emotional damage including but not limited 

to a right shoulder fracture and other injuries.”

On September 3, 2021, Dr. Yee and the Long Life Center

filed a motion for summary judgment, arguing that the evidence 

“conclusively establish[es]” that “both Dr. Yee and the employees 

at Long Life Cardiac Center complied with the applicable 

standard of care at all times,” and that “the respective care 

provided to Plaintiff by Dr. Yee and the employees at Long Life 

Cardiac Center were not substantial factors to Plaintiff’s claimed 

injuries.”2 In support of the motion, defendants offered, inter 

alia, the declaration of Dr. Michael Chaikin, a board-certified 

cardiologist retained by defendants. Dr. Chaikin’s opinion was 

based upon his education, training, experience and review of the 

complaint, plaintiff’s medical records at the Long Life Center and 

her subsequent hospital room stay, and plaintiff’s deposition 

transcript. Dr. Chaikin opined that “[a]ll employees of Long Life

Cardiac Center, including Nurse/technician Xiao Liu, complied 

with the applicable standard of care” during plaintiff’s treatment. 

2 In the alternative, Dr. Yee and the Long Life Center

separately moved for summary adjudication of plaintiff’s cause of 

action for medical malpractice.
5

Specifically, Dr. Chaikin explained that by reviewing the stress 

test readings, he determined that the test started at 

approximately 12:37:16. At the that time, he opined, the 

treadmill “would be moving at 1.7 miles per hour at a 10% grade 

... the equivalent of a very slow walking pace.” The test records 

indicated that the treadmill stopped less than a minute after the 

test started. Dr. Chaikin stated the “incident report” indicated 

that Liu, “who was administering the treadmill test, was able to 

grab Plaintiff and ease her body to the ground.” He opined that 

the “records indicate that Nurse/technician Xiao Liu was 

appropriately standing next to Plaintiff during the treadmill test 

and she was able to ease Plaintiff to the ground.” As to the issue 

of causation, Chaikin opined that “[a]t the time of Plaintiff’s fall, 

the treadmill was moving at a very slow pace for less than a 

minute. Nurse/technician Xiao Liu was properly supervising 

Plaintiff and there was no reason to suspect that Plaintiff would 

stop walking and fall to the ground.” Dr. Chaikin thus concluded 

that “to a reasonable degree of medical probability, no employee 

of Long Life Cardiac Center, including Nurse/technician Xiao Liu, 

caused or contributed to Plaintiff’s injuries.” Dr. Chaikin 

separately addressed the standard of care and causation as to Dr. 

Yee’s treatment of plaintiff after she fell, opining that it was 

within the standard of care and did not cause or contribute to 

plaintiff’s injury.

Defendants’ separate statement of undisputed facts in 

support of their motion closely tracked the language of Dr. 

Chaikin’s declaration. For example, defendants’ undisputed fact 

No. 11 states that “All employees of Long Life Cardiac Center, 

including Nurse/Technician Xiao Liu, complied with the 

applicable standard of care during Plaintiff Thuy Huynh Nhat 
6

Nguyen’s care and treatment.” Undisputed fact No. 13 states 

that “The treadmill was stopped by 12:37:38 and Plaintiff fell less 

than a minute after the treadmill started to move. The records 

indicate that Nurse/Technician Xiao Liu was appropriately 

standing next to Plaintiff during the treadmill test and she was 

able to ease Plaintiff to the ground.” Undisputed fact No. 14 

states that “To a reasonable degree of medical probability, no 

employee of Long Life Cardiac Center, including 

Nurse/Technician Xiao Liu, caused or contributed to Plaintiff’s 

injuries. At the time of Plaintiff’s fall, the treadmill was moving 

at a very slow pace for less than a minute. Nurse/Technician 

Xiao Liu was properly supervising Plaintiff and there was no 

reason to suspect that Plaintiff would stop walking and fall to the 

ground.” Finally, undisputed fact No. 15 states that “Henry Yee, 

M.D. complied with the applicable standard of care since his only 

involvement came after he was notified that Plaintiff had fallen. 

It was appropriate for Dr. Yee to evaluate Plaintiff post-fall, offer 

Tylenol, and call an ambulance to take Plaintiff to the emergency 

room for further workup.”

Plaintiff opposed the motion arguing the existence of 

triable issues of fact regarding both standard of care and 

causation. Plaintiff challenged Dr. Chaikin’s opinion regarding 

causation, arguing that the standard of care required a physician 

to be present during the treadmill test, and that Dr. Chaikin’s 

opinion that no defendant caused or contributed to plaintiff’s 

injury failed to account for plaintiff’s testimony that Liu did 

nothing to assist her when she fell.

While the motion was pending, the court granted plaintiff 

leave to amend her complaint to add Liu as a named party, as 

well as new allegations regarding Liu’s conduct during the 
7

examination. These amendments (1) made clear that Liu, rather 

than Dr Yee, administered the treadmill test to plaintiff; 

(2) added a new allegation that plaintiff was not permitted to 

stop the treadmill herself; and (3) added that no physician was 

present when the test started.

With the court’s permission, both sides filed supplemental 

briefs addressing the amendments to plaintiff’s complaint. As

relevant to this appeal, plaintiff argued there were disputed 

issues of material fact including whether Liu helped plaintiff 

when she fell. Plaintiff also argued for the first time that she was 

excused from presenting an expert declaration to controvert Dr. 

Chaikin’s opinion that the standard of care was met, because 

under the res ipsa loquitur doctrine a lay trier of fact could decide 

whether defendants should have expected that someone with 

plaintiff’s symptoms was at risk of falling and injuring herself

during a treadmill test.

C. The trial court’s ruling on the motion

After a hearing, the trial court granted defendants’ motion. 

The court referenced the general rule that “[a]n uncontradicted 

expert declaration is conclusive proof the health care provider 

met the prevailing standard of care.” Citing Dr. Chaikin’s 

declaration, the court found that defendants had met their initial

burden of showing that defendants’ conduct was within the 

standard of care, and therefore that “[d]efendants . . . met their 

initial burden negating breach.” The court rejected plaintiff’s 

arguments that Dr. Chaikin lacked expertise in treadmill 

operation, noting that the argument went to the weight afforded

Dr. Chaikin’s declaration. The court also rejected plaintiff’s 

argument that her injuries fell within the res ipsa loquitur 

doctrine, finding that the cause of plaintiff’s injury was not a 
8

matter of “common knowledge” equivalent to (for example) a 

surgical implement left in a patient’s body, which could only be 

caused by a lack of due care.

Regarding disputed issues of fact raised by plaintiff, the 

court found that “Plaintiff’s attempts to create a triable issue of 

material fact are unavailing.” The court addressed the issue of 

whether Liu “helped ease Plaintiff to the ground once she started 

falling” and concluded that “any discrepancy in this regard is not 

a material issue of fact. Plaintiff has not provided an expert 

declaration indicating that the standard of care would have 

required defendant Xiao Liu or anybody else to catch Plaintiff if 

she fell.”

The court concluded that “Plaintiff has neither invalidated 

Defendants’ expert evidence nor negated her need to provide 

conflicting expert evidence.” The court accordingly ruled that Dr. 

Chaikin’s uncontroverted declaration was dispositive as to Dr. 

Yee and Liu meeting the standard of care. The court also 

accepted Dr. Chaikin’s opinion that neither Dr. Yee nor Liu did 

anything to cause or contribute to plaintiff’s injury. The court 

granted summary judgment in favor of all three defendants and 

ordered counsel for the moving party to prepare a proposed 

judgment. Plaintiff timely appealed.3

3 In its January 4, 2022 minute order, the court stated that 

the “Summary Judgment Motion of Defendants Henry C. Yee, 

Long Life Cardiac Center, Inc., and Xiao Liu is granted” and 

ordered counsel for the moving parties to submit a proposed 

judgment. The record contains only a judgment dated January 

24, 2022, in favor of Liu. A review of the docket reveals no formal 

judgment was entered as to Dr. Yee or the Long Life Center. 

This appears to be through inadvertence, since on 
9

DISCUSSION

A. Standard of review of a summary judgment

Summary judgment is appropriate if there are no triable 

issues of material fact and the moving party is entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); 

Regents of University of California v. Superior Court (2018) 4 

Cal.5th 607, 618.) “ ‘ “ ‘ “We review the trial court’s decision de 

novo, considering all the evidence set forth in the moving and 

opposing papers except that to which objections were made and 

sustained.” ’ [Citation.] We liberally construe the evidence in 

support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party.” ’ ” 

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) On 

appeal, we “ ‘must assume the role of the trial court and 

January 14, 2022, plaintiff filed objections to a proposed 

judgment in favor of Dr. Yee and the Long Life Center, and the 

court issued a minute order on February 3, 2022, stating that the 

court “orders judgment entered” in favor of Dr. Yee, the Long Life 

Center and Liu. The general rule is that an order granting 

summary judgment is not itself appealable. (Garcia v. Hejmadi

(1997) 58 Cal.App.4th 674, 680.) Here, however, the parties have 

briefed the appeal, and no one has argued that the appeal is 

premature. Thus, “[i]n the interests of justice and to avoid delay, 

we construe the order granting summary judgment as 

incorporating an appealable judgment, and the notice of appeal 

as appealing from such judgment. [Citations.]” (Levy v. 

Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) We 

construe the minute order dated February 3, 2022, which is the 

order from which plaintiff appeals, as “incorporating an 

appealable judgment.” So construed, we have jurisdiction to 

review both the judgment (Code of Civ. Proc., section 904.1, 

subdivision (a)(1)), and the order granting summary judgment 

(Code of Civ. Proc., section 906).
10

redetermine the merits of the motion’ using the same standards 

required below.” (Hernandez v. KWPH Enterprises (2004) 116

Cal.App.4th 170, 175.)

A defendant moving for summary judgment has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 853.) If the defendant satisfies this initial burden, the 

burden shifts to the plaintiff to present evidence demonstrating 

there is a triable issue of material fact. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar, at p. 850.)

B. The trial court erred when it granted summary 

judgment to a nonmoving party

Plaintiff argues that that the trial court erred when it 

granted summary judgment in favor of Liu, who did not move for 

summary judgment or join the motion filed by Dr. Yee and the 

Long Life Center. We agree.

“The trial court cannot grant summary judgment, except to 

a party moving for such relief and complying with all of the 

requirements of section 437c.” (Sierra Craft, Inc. v. Magnum 

Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1254 (Sierra Craft);

accord, Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108 

[“case law makes clear that state trial courts do not have the 

power to enter summary judgment sua sponte”].) Thus, the trial 

court lacked the power to grant summary judgment to Liu, a 

party who had not filed or joined in a motion “complying with all 

of the requirements of section 437c.” (Sierra Craft, at p. 1254.)

Liu suggests any error was harmless, because “[p]laintiff 

had full opportunity to know about, address and oppose [the 
11

summary judgment motion] as to Xiao Liu, and simply did so 

ineffectively.” The law is clear, however, that section 473c 

requires technical compliance. “Any arbitrary disregard of the 

statutory commands in order to bring about a particular outcome 

raises procedural due process concerns.” (Brantley v. Pisaro

(1996) 42 Cal.App.4th 1591, 1607.)

4

C. The Court erred when it found that defendants

met their burden to show they did not breach a 

duty of care

“ ‘The elements of a cause of action for medical malpractice 

are: (1) a duty to use such skill, prudence, and diligence as other 

members of the profession commonly possess and exercise; (2) a 

breach of the duty; (3) a proximate causal connection between the 

negligent conduct and the injury; and (4) resulting loss or 

damage.’ [Citation.]” (Lattimore v. Dickey (2015) 239 

Cal.App.4th 959, 968.) “ ‘ “When a defendant moves for summary 

judgment and supports his motion with expert declarations that 

his conduct fell within the community standard of care, he is 

entitled to summary judgment unless the plaintiff comes forward 

with conflicting expert evidence.” ’ [Citation.]” (Powell v. 

Kleinman (2007) 151 Cal.App.4th 112, 123 (Powell).) Plaintiff 

argues that the trial court erred when it found that defendants

4 Indeed, Liu cites no case to the contrary. Rather, the 

cases cited by Liu–Juge v. County of Sacramento (1993) 12 

Cal.App.4th 59; Marlton Recovery Partners, LLC v. County of Los 

Angeles (2015) 242 Cal.App.4th 510; Ross v. Roberts (2013) 222 

Cal.App.4th 677, and Bacon v. Southern Cal. Edison Co. (1997) 

53 Cal.App.4th 854–discuss the trial court’s power to grant 

summary judgment to the moving party based on an issue not 

specifically raised by the moving party in its motion papers.
12

met their initial burden of production to show that they did not 

breach a duty of care. We agree.

The trial court found that Dr. Chaikin’s uncontroverted 

declaration established that defendants’ conduct was within the 

standard of care and that defendants had met their initial burden 

of negating breach. Dr. Chaikin opined that “[a]ll employees of 

Long Life Cardiac Center, including Nurse/technician Xiao Liu, 

complied with the applicable standard of care during Plaintiff 

Thuy Huynh Nguyen’s care and treatment.” According to Dr. 

Chaikin, Liu was “appropriately standing next to Plaintiff during 

the treadmill test and [he] was able to ease Plaintiff to the 

ground.” He therefore concluded that Liu was “properly

supervising” plaintiff during the treadmill test.

However, the mere fact that a “defendant doctor provides 

an unopposed declaration by an expert does not necessarily mean 

the court should grant summary judgment.” (Powell, supra,151 

Cal.App.4th at p. 123.) “[T]he expert opinion may not be based 

on assumptions of fact that are without evidentiary support or 

based on factors that are speculative or conjectural, for then the 

opinion has no evidentiary value and does not assist the trier of 

fact.” (Bushling v. Fremont Medical Center (2004) 117 

Cal.App.4th 493, 510.) Additionally, “ ‘an opinion unsupported by 

reasons or explanations does not establish the absence of a 

material fact issue for trial, as required for summary judgment[,]’

and ‘an expert opinion is worth no more than the reasons upon 

which it rests.’ ” (Powell, at p. 124.)

Dr. Chaikin’s opinion that Liu was properly supervising

plaintiff was insufficient because it rested on disputed material

facts. Dr. Chaikin relied on the “incident report” to determine 

that Liu caught plaintiff and eased her fall. Thus, he concluded 
13

that Liu was “properly supervising” plaintiff during the test and, 

more importantly, that Liu’s conduct met the standard of care. 

According to plaintiff, however, no one caught her when she fell, 

her chest hit the moving treadmill, and she was propelled into 

the wall. She stated that no one helped her until she stood up by 

herself. The discrepancy between the incident report and 

plaintiff’s testimony is not one that Dr. Chaikin could resolve 

simply by adopting defendants’ version of events in the incident 

report as the basis for his opinion that Liu’s conduct met the 

standard of care. There was no foundation for Dr. Chaikin to 

opine that Liu was “properly supervising” plaintiff or that she 

broke plaintiff’s fall, which are the only facts supporting his 

opinion that Liu met the standard of care.

The trial court disregarded this factual dispute as 

immaterial because plaintiff failed to submit “an expert 

declaration indicating that the standard of care would have 

required defendant Xiao Liu or anybody else to catch Plaintiff if 

she fell.” In so doing, the trial court reversed the parties’ 

statutory burdens. Because Dr. Chaikin’s opinion that Liu’s 

conduct fell within the standard of care was based on material 

facts that are in dispute, plaintiff was under no obligation to 

come forward with an expert declaration to controvert Dr. 

Chaikin’s opinion that the standard of care was met.5

5 It may ultimately be the case that defendants will be able 

to present expert testimony that Liu met the standard of care 

regardless of whether she caught plaintiff when she fell. For 

purposes of this appeal, however, no such opinion was presented 

to the trial court in support of defendants’ motion for summary 

judgment.
14

Under these circumstances, the general rule that we credit 

an uncontradicted expert declaration that the standard of care 

was met is inapplicable. In essence, Dr. Chaikin’s declaration

has the same effect as a hypothetical question posed at trial: in 

order for his opinion to have any weight, the trier of fact must 

first determine which version of events it believes. “[A]n expert’s 

opinion that something could be true if certain assumed facts are 

true, without any foundation for concluding those assumed facts 

exist in the case before the jury, does not provide assistance to 

the jury because the jury is charged with determining what 

occurred in the case before it, not hypothetical possibilities.” 

(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 

Cal.App.4th 1108, 1117 (Jennings).)

D. Defendants did not negate causation

Even if plaintiff established a triable issue of fact as to the 

issue of breach of duty, summary judgment for defendants would 

nonetheless be proper if they met their burden to establish the 

absence of causation. “ ‘Like breach of duty, causation also is 

ordinarily a question of fact which cannot be resolved by 

summary judgment. The issue of causation may be decided as a 

question of law only if, under undisputed facts, there is no room 

for a reasonable difference of opinion.’ ” (Lawrence v. La Jolla 

Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33.) For 

purposes of a defendant’s motion for summary judgment, a prima 

facie showing is evidence that would require a reasonable trier of 

fact not to find any underlying material fact more likely than not. 

(Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San 

Jose (2009) 174 Cal.App.4th 339, 353.)

Dr. Chaikin opined that “to a reasonable degree of medical 

probability, no employee of Long Life Cardiac Center, including 
15

Nurse/Technician Xiao Liu, caused or contributed to Plaintiff’s 

injuries.” Dr. Chaikin based his opinion on the conclusion that: 

“Nurse/technician Xiao Liu was properly supervising plaintiff and 

there was no reason to suspect that Plaintiff would stop walking 

and fall to the ground.” Dr. Chaikin’s opinion regarding 

causation, like his opinion on standard of care, necessarily 

incorporated Liu’s version of events to the exclusion of plaintiff’s. 

His assertion that there is no causation because Liu was 

“properly” supervising plaintiff during the treadmill test has no 

probative value if Liu was not, in fact, “properly” supervising 

plaintiff. (Jennings, supra, 114 Cal.App.4th at p. 1117.) Nor 

does he provide any explanation for his conclusion that there was 

no reason to suspect that plaintiff would “stop walking and fall to 

the ground.”6 Dr. Chaikin’s “opinion unsupported by reasons or 

explanations does not establish the absence of a material fact 

issue for trial.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)7

6 In fact, the record indicates that plaintiff had come to the 

clinic complaining of chest pain and dyspenia when walking, 

which suggests that plaintiff might have trouble performing the 

treadmill test.

7 Because we conclude that defendants’ expert declaration

was insufficient to establish the absence of a material fact issue 

as to breach of duty and causation, we do not address plaintiff’s

res ipsa loquitur argument.
16

DISPOSITION

The judgments in favor of Dr. Yee, the Long Life Center, 

and Xiao Liu are reversed and the matter is remanded for further 

proceedings consistent with this opinion. Plaintiff is awarded her 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

HEIDEL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.