Filed 5/7/13 Lopez v. Broukhim CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JESSICA LOPEZ, a Minor, etc.,

Plaintiff and Appellant,

v.

BIJAN BROUKHIM et al.,

Defendants and Respondents.

 B239728

 (Los Angeles County

 Super. Ct. No. LC091675)

APPEAL from summary judgment of the Superior Court of Los Angeles County. 

James A. Kaddo, Judge. Affirmed. 

Nathaniel J. Friedman for Plaintiff and Appellant Jessica Lopez, a Minor, etc.

La Follette, Johnson, De Haas, Fesler & Ames, Don Fesler and David J. Ozeran 

for Defendants and Respondents Bijan Broukhim, M.D., and Bijan Broukhim, M.D., Inc. 

dba Golden Care Medical Group. 

Schmid & Voiles, Denise H. Greer, Rodney G. Tomlinson, and Adam R. James 

for Defendant and Respondent George M. Delshad, M.D. 

___________________________
2

This appeal arises from a minor‟s action for “wrongful life” based upon 

allegations of medical malpractice against multiple doctors and health care providers. 

The trial court granted motions for summary judgment in favor of two doctors in their 

individual capacities – Drs. George Delshad and Bijan Broukim – and also Dr. Broukim 

as a professional corporation doing business as Golden Care Medical Group. We affirm. 

FACTS

Medical Treatment

Plaintiff and appellant Jessica Lopez was born in June 2003 with spina bifida, a 

congenital disorder resulting from an anomaly of the neural tube. Spina bifida is not 

caused by any medical treatment; it is a genetic condition. The only way to prevent a 

fetus with the anomaly from progressing to being born with spina bifida is to abort the 

fetus. 

Golden Care Medical Group is located in Van Nuys. Jessica‟s mother, Reyna 

Rosas, received prenatal care at Golden Care Medical Group on a number of occasions 

during her pregnancy with Jessica.1 A nurse practitioner saw Ms. Rosas four times 

between October 2002, and March 2003. A family practice physician, Dina Ross, M.D., 

saw Ms. Rosas once in November 2002 and once in December 2002. 

 

1 Undisputed evidence in the record shows that Golden Care Medical Group was a 

registered “doing business as” (dba) fictitious name of Alejandro Gonzales in 2002 and 

2003, when Ms. Rosas received medical care at the group. A dba is not a recognized 

legal entity; it is a registered fictitious name. The purpose of the registered dba procedure 

is to allow the public to identify a business‟s owner. (See, e.g., Ball v. Steadfast-BLK 

(2011) 196 Cal.App.4th 694, 701.) Business & Professions Code section 2415 authorizes 

physicians who are licensed in California to practice medicine under a registered 

fictitious name. The business organization and history of the owners of the registered 

dba “Golden Care Medical Group” is discussed more extensively below as relevant to the 

issues argued by Jessica on appeal. The record shows that Alejandro Gonzalez is a 

doctor of osteopathic medicine (D.O.). Jessica named Dr. Gonzalez as a defendant in her 

current wrongful life action, but he is not involved in her current appeal. 
3

In January 2003, when Ms. Rosas was an estimated 18 weeks gestation, she was 

referred for Alpha-Fetoprotein (AFP) testing. AFP testing is not specific for spina bifida, 

but a high level of AFP can be an indicator of spina bifida. The AFP test was negative. 

Ms. Rosas received ultrasounds at Golden Care Medical Group on January 10, 

2003, at approximately 18 weeks gestation, and on March 7, 2003, at approximately 26 

weeks gestation. Dr. Maria Rodriguez2interpreted the January 2003 ultrasound. Her 

report stated: “No gross fetal abnormality observed.” At her deposition taken in 

Jessica‟s current case, Dr. Rodriguez testified that the January 2003 ultrasound was a 

“level one” ultrasound, which means is used to determine gestational age. Leonard 

Feigenbaum, M.D., interpreted the March 2003 ultrasound. Dr. Feigenbaum‟s report did 

not note any gross fetal abnormality, and concluded Ms. Rosas had a “viable single 

intrauterine pregnancy of an approximate menstrual age of 26 weeks.” 

George Delshad, M.D. delivered Jessica. Dr. Delshad first saw Ms. Rosas at the 

Golden Care Medical Group on March 18, 2003, when Ms. Rosas was at approximately 

28 weeks gestation. He saw Ms. Rosas at Golden Care Medical Group three more times 

in April and May 2003, before delivering Jessica on June 3, 2003. It is undisputed that 

Dr. Delshad had no physician-patient relationship with Ms. Rosas prior to March 18, 

2003. He never met Ms. Rosas prior to that date, and had no involvement with her 

medical care and treatment prior to that date. 

When Dr. Delshad first saw Ms. Rosas on March 18, 2003, he reviewed her chart 

at Golden Care Medical Group, including the January 10, 2003 and March 7, 2003 

ultrasound reports. He did not review the recorded ultrasound images themselves, but 

relied on the reports by the radiologists as described above. 

Golden Care Medical Group

As noted, Ms. Rosas received prenatal care in 2002 and 2003 at the Van Nuys 

clinic she knew as Golden Care Medical Group. During that time, Alejandro Gonzalez, 

D.O. registered the Van Nuys clinic under the dba name of Golden Care Medical Group. 

 

2 Dr. Rodriguez is a named defendant, but not a party to Jessica‟s current appeal. 
4

On January 14, 2008, approximately four and one-half years after Jessica was 

born, and almost three years before she filed her wrongful life action, Dr. Gonzalez and 

Bijan Broukhim, M.D., Inc. (hereafter Dr. Broukhim Inc.) executed a “Letter of 

Understanding” (LOU) for the purchase of “„Golden Care Medical Group.‟” Bijan 

Broukhim executed the LOU, acting for Dr. Broukhim, Inc. It is undisputed that 

Broukhim is an M.D., licensed to practice medicine in California. 

Paragraph 4 of the LOU provided that Dr. Broukhim, Inc. would purchase from 

Dr. Gonzalez “all tangible and intangible assets related to the Van Nuys Clinic . . . ,” and 

described those assets to include patient lists and files, goodwill, and identified medical 

and office equipment on site. The LOU referred to Dr. Gonzalez as the “Seller” and Dr. 

Broukhim, Inc. as the “Buyer.” The LOU stated a sale price totaling $200,000, payable 

according to a schedule of payments to be completed over a four-month period. 

 Paragraph 6 of the LOU reads: “Buyer shall not assume or become responsible for 

any of Seller‟s duties, obligations or liabilities not expressly assumed by Buyer pursuant 

to this Agreement, including without limitation any liabilities (i) associated with the Van 

Nuys Clinic Assets arising prior to the Closing Date and (ii) associated with any assets of 

Seller other than [the] Van Nuys Clinic Assets.” Further, Paragraph 9 of the LOU set 

forth terms governing Dr. Gonzalez‟s “indemnification” of Dr. Broukhim for any and all 

claims and damages “relating to the Van Nuys Clinic” on or before the closing date of the 

sale/purchase. Paragraph 9 includes this closing sentence: “It is the intention of Buyer 

and Seller that Buyer shall take possession of the Van Nuys Clinic free and clear of any 

and all liabilities, debts, accounts payable, and obligations other than those expressly 

assumed by the terms of this Agreement.”3 Paragraph 2 of the Letter set the closing date 

for the sale and purchase for January 18, 2008. 

 

3 At his deposition in Jessica‟s current case, Dr. Gonzalez testified that it was his 

understanding that pursuant to the agreement, Dr. Broukhim Inc. would not be 

responsible for any patient care at the clinic before the date the agreement was signed. 
5

Jessica‟s legal arguments in the trial court and on appeal are predicated on the 

position that the history leading up to the agreement between Dr. Gonzalez and Dr. 

Broukhim, Inc. for the Van Nuys clinic known as Golden Care Medical Group is 

relevant. Accordingly, we set forth those facts, as follows. 

Gold Medical Group, Inc. was incorporated in 1997, and owned three medical 

clinics, one of which was the clinic in Van Nuys where Ms. Rosas went for treatment 

during her pregnancy with Jessica. Gold Medical Group, Inc. registered a dba for the 

Van Nuys clinic, namely, Golden Care Medical Group. In or about 1999, Dr. Gonzalez 

purchased Gold Medical Group, Inc. from Amos Woodard, M.D.4

Pursuant to an agreement finalized in February 2007, Dr. Gonzalez sold Gold 

Medical Group, Inc. to Jason Boutros, M.D. However, Dr. Gonzalez kept the Van Nuys 

clinic then operating under the dba Golden Care Medical Group. To that end, the assets 

of the Van Nuys clinic, i.e., the dba Golden Care Medical Group, were specifically 

carved out of the agreement for the sale of Gold Medical Group, Inc., and Dr. Gonzalez 

retained them. A document entitled “Minutes of Organizational Meeting of Directors of 

Gold Medical Group, Inc.,” dated February 28, 2007, states that Golden Care Medical 

Group in Van Nuys was excluded from the sale of Gold Medical Group, Inc. to Dr. 

Boutros. In May 2007, the Articles of Incorporation of Gold Medical Group, Inc. were 

amended to reflect Dr. Boutros‟s takeover of the corporation. It did not include 

ownership of the Van Nuys clinic, i.e., the dba Golden Care Medical Group. 

Ultimately, on January 14, 2008, Dr. Gonzalez and Dr. Broukhim, Inc., acting by 

Dr. Broukhim, signed the LOU regarding the purchase of Golden Care Medical Group. 

On January 16, 2008, Dr. Broukhim, Inc. filed a dba fictitious business name statement 

for Golden Care Medical Group. On January 18, 2008, Dr. Gonzalez sent a letter to all of 

the employees at the Van Nuys clinic, reading as follows: “Golden Care Medical Group 

has been purchased by Dr. Bijan Broukhim, M.D., Inc. Therefore with the effective day 

of purchase you will no more be employed by Gold Medical Group, Inc./dba Golden 

 

4 Woodard is not a party to Jessica‟s wrongful life action or her current appeal.
6

Care Medical Group.” Dr. Gonzalez also released the lease between Gold Medical 

Group, Inc. and Sam & Sam, Inc. for the space occupied by Golden Care Medical Group. 

In summary, Dr. Gonzalez owned Gold Medical Group, Inc. dba Golden Care 

Medical Group during 2002 and 2003, at the time of the medical malpractice alleged by 

Jessica. He sold Gold Medical Group, Inc. to Dr. Boutros in February 2007, but retained 

for himself the assets of the Van Nuys clinic dba Golden Care Medical Group. Dr. 

Gonzalez then sold the assets of the clinic dba Golden Care Medical Group to Dr. 

Broukhim, Inc. in January 2008. 

The Litigation

In November 2010, Ms. Rosas filed a complaint for damages on behalf of Jessica. 

She alleged a cause of action for professional negligence and related claims. Jessica‟s 

action named the following defendants: “Golden Care Medical Group” and “Golden 

Care Medical Clinic” (“exact business forms unknown”), Dr. Gonzalez, Dr. Rodriguez, 

Dr. Delshad, Dr. Broukhim, and Dr. Broukhim, Inc. dba Golden Care Medical Group. 

As relevant to her current appeal, Jessica‟s action alleges that the defendants were 

negligent in providing medical care in that they failed to diagnose spina bifida in utero. 

Absent the negligence, Jessica argues, she “would not have been born” because her 

mother, Ms. Rosas, would have terminated the pregnancy. Jessica alleges she has 

incurred medical expenses to treat her condition, and will incur ongoing medical 

expenses in the future. 

In July 2011, Dr. Delshad, Dr. Broukhim, and Dr. Broukhim, Inc. dba Golden 

Care Medical Group filed a joint motion for summary judgment. The trial court ordered 

supplemental briefs and evidentiary submissions concerning the business history and 

organization of Golden Care Medical Group. After oral argument, the court entered a 

summary judgment in favor of Dr. Broukhim, individually, and Dr. Broukhim, Inc. dba 

Golden Care Medical Group; and a second summary judgment in favor of Dr. Delshad. 

Jessica filed a timely notice of appeal. 
7

DISCUSSION

Jessica contends the trial court erred by granting the joint motion for summary 

judgment. We disagree.

I. Standard of Review

Summary judgment is appropriate where “all the papers submitted show that there 

is no triable issue as to any material fact and that the moving party is entitled to a 

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

moving for summary judgment meets this burden by presenting evidence demonstrating 

that one or more elements of the cause of action cannot be established or that there is a 

complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar).) Once the defendant makes this 

showing, the burden shifts to the plaintiff to show the existence of a triable issue of 

material fact as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); 

see Aguilar, supra, 25 Cal.4th at p. 850.) 

To determine whether the parties have met their respective burdens, the appellant 

court considers “„all of the evidence set forth in the [supporting and opposition] papers, 

except that to which objections have been made and sustained by the court, and all 

[uncontradicted] inferences reasonably deducible from the evidence.‟” (Artiglio v. 

Corning Inc. (1998) 18 Cal.4th 604, 612.) A plaintiff opposing summary judgment 

cannot rely upon the mere allegations or denials of its pleadings, but “shall set forth the 

specific facts” based on admissible evidence showing a triable issue exists. (Code Civ. 

Proc., § 437c, subd. (p)(2); Borders Online v. State Bd. of Equalization (2005) 129 

Cal.App.4th 1179, 1188.) When a moving party makes the required prima facie showing, 

an opposing party‟s failure to comply with this requirement may, in the court‟s 

discretion, constitute a sufficient ground for granting the motion. (See Buehler v. Alpha 

Beta Co. (1990) 224 Cal.App.3d 729, 734-735; Oldcastle Precast, Inc. v. Lumbermens 

Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 568.) 
8

However, the court may not grant the motion unless it first determines that the 

moving party has met its initial burden of proof. (See Thatcher v. Lucky Stores, Inc. 

(2000) 79 Cal.App.4th 1081, 1086 [“[U]nless the moving party has met its initial burden 

of proof, the court does not have discretion under subdivision (b) of section 437c to grant 

summary judgment based on the opposing party‟s failure to file a proper separate 

statement.”]; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 106 [trial court must 

consider all of the papers submitted before exercising its discretion to grant a summary 

judgment based on the failure to file an adequate separate statement]; Villa v. McFerren

(1995) 35 Cal.App.4th 733, 746.) When the facts are undisputed, the court may grant 

summary judgment on issues that otherwise could have been submitted to the jury 

because “[a]n issue of fact becomes one of law and loses its „triable‟ character if the 

undisputed facts leave no room for a reasonable difference of opinion.” (Ostayan v. 

Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418.) Thus, the defendant is 

entitled to summary judgment if the record establishes as a matter of law that none of 

plaintiffs‟ asserted causes of action can be maintained. (Aronson v. Kinsella (1997) 

58 Cal.App.4th 254, 270.)

An appellate court independently reviews an order granting summary judgment. 

(Aguilar, supra, 25 Cal.4th at p. 860.) We determine whether the court‟s ruling was 

correct, not its reasons or rationale. (Salazar v. Southern Cal. Gas Co. (1997) 

54 Cal.App.4th 1370, 1376.) “In practical effect, we assume the role of a trial court and 

apply the same rules and standards which govern a trial court‟s determination of a motion 

for summary judgment.” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) 

“„In performing our de novo review, we must view the evidence in a light favorable to 

plaintiff as the losing party [citation], liberally construing [his or] her evidentiary 

submission while strictly scrutinizing [defendant‟s] own showing, and resolving any 

evidentiary doubts or ambiguities in plaintiff‟s favor.‟ [Citations.]” (United Parcel 

Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1009; accord, Aguilar, supra, 

25 Cal.4th at p. 843.) 
9

II. The Summary Judgment Motion

Dr. Broukhim supported his motion by evidence showing that he never provided 

any medical care to Ms. Rosas.5 As to Dr. Broukhim, Inc. dba Golden Care Medical 

Group, the motion was based on evidence showing the corporation had only purchased 

the assets of the group in Van Nuys, and had not assumed any of the group‟s pre-sale 

liabilities. 

Dr. Delshad submitted an expert‟s declaration showing that the treatment he 

rendered satisfied the standard of care. Dr. Delshad‟s evidence showed it was 

appropriate for him to rely upon the radiologists‟ ultrasound reports when he began 

treating Ms. Rosas, neither of which noted any anomaly. Also, because Ms. Rosas was 

not at high risk for having a baby with a neural tube defect, he did not need to offer 

further ultrasound or genetic testing services. Finally, his expert opined the standard of 

care does not require a doctor to offer those further services beyond the gestational age of 

24 weeks; Dr. Delshad first became involved in Ms. Rosa‟s care at 28 weeks of 

pregnancy. 

Jessica opposed the motion for summary judgment by filing an evidentiary 

objection to the entirety of the expert‟s declaration in support of Dr. Delshad. Relying on 

Garibay v. Hemmat (2008) 161 Cal.App.4th 735, Jessica argued the declaration was 

insufficient to support the motion or to shift the burden of proof. Jessica also offered 

declarations from two different experts. An expert radiologist opined that Dr. Rodriguez 

was negligent in interpreting and following up on Ms. Rosas‟s January 2003 ultrasound. 

Specifically, Jessica submitted an expert opinion from Marshall Kadner, M.D. to 

show Dr. Delshad‟s medical treatment fell below the requisite standard of care. 

Dr. Kadner‟s declaration provided as follows: 

“The physician receiving [Dr. Rodriguez‟s January 2003 ultrasound] 

report, i.e., Dr. Delshad . . . or other health care provider involved, at the 

time, acted below the standard of care by failing to review and react, fully, 

 

5

In her opposition to the motion for summary judgment as to Dr. Broukhim, Jessica 

admitted that he never personally rendered any medical care to her mother. 
10

to the ultrasound report, which should have described a nervous system 

abnormality, i.e., enlarged brain ventricles, which often are associated with 

severe neurological anomalies, including spina bifida, which was in fact, 

present in this case. [¶] . . . Further studies would very probably have 

revealed the abnormality, which would have provided Ms. Rosas 

information and the time for deciding whether or not to continue [her] 

pregnancy. . . .” 

In a motion for new trial, after the motion for summary judgment was granted, 

Jessica presented a second expert declaration which opined that Dr. Delshad was 

negligent in delivering her. 

III. Jessica’s Appeal as to Dr. Broukhim, Individually

In her opposition to the motion for summary judgment as it concerned Dr. 

Broukhim individually, Jessica admitted that he never personally rendered any medical 

care to her mother. Given the absence of any physician-patient relationship, Dr. 

Broukhim cannot be found liable for medical malpractice. (Keene v. Wiggins (1977) 

69 Cal.App.3d 308, 312-316.) As a result, we find summary judgment in favor of Dr. 

Broukhim as an individual physician was properly granted. 

IV. Jessica’s Appeal as to Dr. Broukhim, Inc. dba Golden Care Medical Group

Jessica contends summary judgment in favor of Dr. Broukhim, Inc. dba Golden 

Care Medical Group must be reversed because there are disputed issues of fact as to 

liability arising from the corporation‟s ownership of the Van Nuys clinic dba Golden 

Care Medical Group. Jessica argues that by retaining the name of Golden Care Medical 

Group, Dr. Broukhim, Inc., received the benefit of portraying a continuity of ownership 

of an existing business. Jessica claims that, as a result, there are triable issues of fact 

concerning principles of ostensible agency as defined in Civil Code section 2317. 

We disagree.

Civil Code section 2317 reads: “Ostensible authority is such as a principal, 

intentionally or by want of ordinary care, causes or allows a third person to believe the 

agent to possess.” In 2002 and 2003, when Ms. Rosas received medical treatment care at 
11

Golden Care Medical Group, no person or entity affiliated with the clinic said or did 

anything that could have caused Ms. Rosas to believe that Dr. Broukhim, Inc., or Dr. 

Broukhim, individually, was an agent of the clinic. And, no person or entity affiliated 

with Dr. Broukhim, Inc., or Dr. Broukhim, individually, said or did anything that could 

have caused Ms. Rosas to believe that the clinic was an agent of the corporation or the 

doctor, individually. In 2002 and 2003, there was no factual or legal relationship 

whatsoever between Dr. Broukhim, Inc., or Dr. Broukhim, individually, and Golden Care 

Medical Group. Jessica‟s ostensible agency argument is a non sequitur. 

Jessica‟s extensive discussions of cases such as Mejia v. Community Hospital of 

San Bernardino (2002) 99 Cal.App.4th 1448, and Stanhope v. L.A. Coll. of Chiropractic

(1942) 54 Cal.App.2d 141, as they involve ostensible agency in the context of hospitals 

are not helpful. We reiterate: as between Dr. Broukhim – whether in an individual status 

or in a corporate capacity – and the Van Nuys medical clinic, there was no relationship 

between 2002 and 2003. No person or entity in any role, in any place, did or said 

anything to anyone during that time period to create or sever any impression that there 

was any agency relationship between the two. 

The true issue here is one of successor liability. Ordinarily, the doctrine of 

successor liability has been addressed in a context where two corporations have entered a 

sale and purchase transaction. As typically formulated, successor liability rules provide 

that a purchasing corporation does not assume the liabilities of a selling corporation 

“unless (1) there is an express or implied agreement of assumption, (2) the transaction 

amounts to a consolidation or merger of the two corporations, (3) the purchasing 

corporation is a mere continuation of the seller, or (4) the transfer of assets to the 

purchaser is for the fraudulent purpose of escaping liability for the seller‟s debts.” 

(Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28; and see, e.g., Franklin v. USX Corp. (2001) 

87 Cal.App.4th 615, 621.) Although the doctrine of successor liability ordinarily applies 

in the context of two corporations, courts have applied the doctrine as an equitable 

measure where a corporation succeeds a partnership or an individual business operation. 
12

(See generally, Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1327-1334 

[discussing the doctrine of successor liability].)

Here, the transaction between Dr. Gonzalez and Dr. Broukhim, Inc. defeats a 

finding that Dr. Broukhim, Inc. may be found to have successor liability for Dr. 

Gonzalez. Indeed, the LOU expressly provided that Dr. Broukhim, Inc. was purchasing 

the assets of the Van Nuys medical clinic and was not assuming any of the liabilities 

related to the clinic prior to the date of the transaction. There was no consolidation or 

merger. Dr. Gonzalez sold out; Dr. Broukhim, Inc. came in. Further, we see no evidence 

tending to show a fraudulent transaction to escape a liability –– Jessica had yet not filed 

her suit when Dr. Gonzalez sold, and Dr. Broukhim, Inc. purchased the assets of the Van 

Nuys clinic. 

V. Jessica’s Appeal as to Dr. Delshad, Individually

Jessica argues the trial court erred in granting summary judgment in favor of Dr. 

Delshad because there are triable issues of fact concerning his liability for medical 

malpractice. Essentially, Jessica argues that because she presented an expert declaration 

in opposition to the one presented by Dr. Delshad, summary judgment should not have 

been granted. Not so. 

Dr. Delshad moved for summary judgment as to the medical malpractice claim 

relying upon a declaration from Dr. C. Paul Sinkhorn, a board certified doctor in 

obstetrics and gynecology since 1987. Dr. Sinkhorn opined Dr. Delshad did not breach 

the standard of care in treating Ms. Rosas. Specifically, Dr. Sinkhorn indicated that the 

standard of care allowed Dr. Delshad to rely upon the radiologists‟ January and March 

2003 ultrasound reports, which did not show any anomaly indicative of spina bifida. 

Further, Ms. Rosas was not at high risk for having a baby with a neural tube defect, so the 

standard of care did not require Dr. Delshad to offer more testing to check for its 

presence. Finally, because Ms. Rosas was 28 weeks pregnant when Dr. Delshad first saw 

her, the fetus was viable. The standard of care did not require more ultrasound or genetic 

testing or abortion counseling past the gestational age of 24 weeks. 
13

Opposition by the Declaration of Dr. Kadner

In opposition, Jessica offered Dr. Kadner‟s declaration. Dr. Kadner offered an 

opinion that Dr. Delshad “acted below the standard or care by failing to review and react, 

fully, to the [January 2003] ultrasound report, which should have described a nervous 

system abnormality . . . .” 

Dr. Kadner did not address or offer an opinion on whether the standard of care 

required Dr. Delshad to do more than review the ultrasound reports; to order further 

ultrasound or genetic testing given Ms. Rosas‟s lack of risk for having a baby with a 

neural tube defect; or whether the Dr. Delshad was required to offer such further services 

to a patient, Ms. Rosas, who was at 28 weeks of pregnancy. Further, given that the 

January 2003 ultrasound report did not describe a nervous system abnormality, Dr. 

Kadner‟s declaration does not apply to the facts of Jessica‟s case. As a result, we see no 

triable issue of fact left for a jury to resolve. 

Jessica‟s argument that the trial court incorrectly relied on Kelley v. Trunk (1998) 

66 Cal.App.4th 519 (Kelley), in granting the motion as to Dr. Delshad does not persuade 

us to reverse. In Kelley, the issue was whether a party moving for summary judgment 

had presented sufficient evidence to meet his burden of showing a defense to the action. 

The Court of Appeal reversed the trial court‟s grant of summary judgment, finding the 

moving party‟s evidence consisted of nothing more than an expert‟s conclusory 

declaration. Assuming, as Jessica argues, that Kelley is inapposite because the issue is 

the sufficiency of her evidence opposing a motion for summary judgment, we are not 

persuaded to reverse. The task of a reviewing court is to review the lower court‟s ruling, 

not its reasoning. (See, e.g., Coral Construction, Inc. v. City and County of San 

Francisco (2010) 50 Cal.4th 315, 336.) As explained above, we find the trial court 

correctly ruled that Jessica failed to present evidence showing a triable issue of fact 

existed as to the standard of care. Accordingly, we will not reverse the trial court‟s 

decision based on Jessica‟s argument under Kelley, supra. 
14

We also disagree with Jessica that the trial court erred in characterizing Dr. 

Kadner‟s averments as “unsupported conclusions.” As we observed, Dr. Kadner did not 

respond to the standard of care evidence presented by Dr. Sinkhorn. Instead, Dr. Kadner 

offered an opinion that Dr. Delshad should have responded to a problem with the January 

2003 ultrasound. However, the assertion of perceived negligence simply did not exist in 

this case; there was no anomaly in the January 2003 ultrasound. 

Jessica‟s reliance on Guthrey v. State of California (1998) 63 Cal.App.4th 1108 

(Guthrey), for a different result is also not persuasive. The appeal in Guthrey arose from 

an employment discrimination and harassment action. The state employer and related 

defendants filed a motion for summary judgment and the plaintiff opposed it with a 

declaration that he had been “„given a Letter of Reprimand, harassed, and subjected to a 

hostile work environment.‟” (Id. at p. 1121, italics omitted.) The trial court granted the 

motion and entered summary judgment in favor of the moving parties. The Court of 

Appeal affirmed, rejecting the plaintiff‟s argument that his averments of “harassment” 

were sufficient to create a triable issue of fact. The Court of Appeal ruled that the 

plaintiff‟s declaration was not sufficient to defeat the motion because the averments of 

“harassment” were not supported by facts to support them. (Id. at pp. 1119-1120.) 

In Jessica‟s current case, she argues that Dr. Kadner‟s declaration in opposition to 

Dr. Delshad‟s motion for summary judgment is sufficiently more detailed than the 

declaration which was at issue in Guthrey. Jessica argues that Dr. Kadner‟s declaration 

included sufficient supporting facts to overcome Dr. Delshad‟s motion. On the contrary, 

Dr. Kadner‟s declaration suffered from the same lack of supporting facts as did the 

declaration in Guthrey. Dr. Kadner offered no more than a generalized statement that Dr. 

Delshad violated the standard by not doing more. However, he does not say what more 

Dr. Delshad should have done after properly reviewing the January 2003 ultrasound 

report which noted no abnormalities. He instead states the ultrasound “should have 

described” a neural tube defect. 
15

We agree with Jessica that the opposing party‟s burden is one of production of 

evidence rather than persuasion. We add that, in ruling on such a motion, a court may not 

weigh the evidence in the manner of a factfinder, and that a court must liberally construe 

opposition papers. The problem with application of these rules here is that they do not 

defeat the trial court‟s decision to grant the motion as to Dr. Delshad because Jessica‟s 

evidence submitted in opposition to the motion did not show the existence of disputed 

fact concerning the standard of care. 

Opposition by the Declaration of Dr. Robertson in the Motion for New Trial

Jessica‟s final argument is that the expert declaration she submitted from Patricia 

Robertson, M.D., raised triable issues of fact as to Dr. Delshad‟s negligence which 

requires reversal of the grant of the motion as to Dr. Delshad. We disagree. 

In support of a motion for new trial, Jessica submitted the declaration from Dr. 

Robertson. Dr. Robertson‟s declaration faults Dr. Delshad‟s treatment on June 2 and 3, 

2003, when Ms. Rosas delivered Jessica. Dr. Robertson‟s declaration concludes: 

“The aforesaid negligent conduct on the part of Dr. Delshad was a substantial factor in

the outcome because, if [Jessica] had been transferred to a higher level care facility for 

delivery and care, for example, UCLA, it is more likely that [sic] not that her level of 

functioning would be better than it is today.” Dr. Roberston did not state her opinion to a 

reasonable degree of medical certainty. The trial court denied Jessica‟s motion for new 

trial.

A trial court has broad discretion in ruling on a new trial motion, and the court‟s 

ruling will not be disturbed on appeal absent a showing of abuse of discretion. (City of 

Los Angeles v. Decker (1977) 18 Cal.3d 860, 870-872.) Jessica‟s argument does not 

persuade us to reverse the judgment because she has not shown that the trial court abused 

its discretion in denying her new trial motion. Procedurally, Jessica did not file her 

supporting papers for her new trial motion within the prescribed time. Under Code of 

Civil Procedure section 659a and California Rules of Court, rule 3.1600(a), she had 10 

days after the filing of her notice of intention to move for new trial in which to file her 

papers in support of her motion. Jessica missed the deadline for filing her supporting 
16

papers by seven days. Further, Jessica made no showing that Dr. Robertson‟s evidence 

was “newly discovered,” and could not have been reasonably discovered earlier. (Code 

Civ. Proc., § 657, subd. 4.) The failure to adhere to these guidelines for a new trial shows 

the trial court‟s decision to deny Jessica‟s motion for new trial was within the bounds of 

its discretion. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 529.) 

Neither was Jessica‟s motion for new trial well-taken on the merits. Dr. 

Robertson‟s declaration concerned a perceived substandard physician performance during 

the delivery of Jessica, which was not alleged in Jessica‟s complaint. To show the 

existence of a triable issue of fact, evidence in opposition to a motion must address the 

issues framed by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 

1242, 1258, fn. 7.) To allow Jessica to do what she tried to do here would have unfairly 

put Dr. Delshad to the burden of defending against a moving target. (Ibid.) We also note 

that Dr. Robertson‟s declaration as to causation between any perceived negligence and 

Jessica‟s diminished well-being was insufficient because Dr. Robertson did not state to a 

reasonable degree of medical certainty that Jessica would function better today but for the 

deficient physician performance assigned to Dr. Delshad. 

For all of the reasons discussed, the trial court did not rule arbitrarily or 

irrationally in denying Jessica‟s new trial motion. (Blackman v. Burrows (1987) 193 

Cal.App.3d 889, 893 [a court abuses judicial discretion when its ruling is arbitrary, 

capricious or without basis in reason].)6

 

6

Jessica‟s opening brief on appeal has significant discussions about the liability of 

“Golden Care Medical Group” for the negligence of its “employees” and or “agents.” 

For example, Jessica argues “Golden Care Medical Group” may be held liable for Dr. 

Rodriguez‟s deficient performance in interpreting Ms. Rosas‟s ultrasound in January 

2003, and that “Golden Care Medical Group” may be held liable for Dr. Delshad‟s 

deficient performance in 2003 in not diagnosing Jessica‟s neural anomaly in utero. 

We express no view on the possible liability of any person or entity that may have done 

business as Golden Care Medical Group in 2002 and 2003. Only three judgments are at 

issue on Jessica‟s appeal: the judgment in favor of Dr. Delshad, individually, the 

judgment in favor Dr. Broukhim, individually, and Dr. Broukhim, Inc, dba Golden Care 

Medical Group. We affirm those three judgments for the reasons discussed above. 
17

DISPOSITION

The summary judgment entered on February 6, 2012, in favor of Bijan Broukhim, 

M.D., individually; Bijan Broukhim, M.D. Inc. dba Golden Care Medical Group and 

George Delshad, M.D. is affirmed. 

BIGELOW, P. J. 

We concur:

RUBIN, J. 

GRIMES, J.