Filed 9/16/15 Mousavi v. Community Memorial Health System CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

MORVARID MARY MOUSAVI,

 Plaintiff and Appellant,

v.

COMMUNITY MEMORIAL HEALTH 

SYSTEM, 

 Defendant and Respondent.

2d Civil No. B255498

(Super. Ct. No. 56-2012-00418964-CUMM-VTA)

(Ventura County)

Morvarid Mary Mousavi sued Community Memorial Health System, dba 

Community Memorial Hospital (CMH) and others for injuries she purportedly sustained 

during and after a surgical procedure. CMH successfully demurred to all but the medical 

malpractice claim and moved for summary judgment. It submitted expert evidence that 

its treatment was within the applicable standard of care and did not cause Mousavi's 

claimed injuries. Mousavi offered no admissible expert evidence in response. 

Concluding she had failed to raise a triable issue of material fact, the trial court granted 

summary judgment. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

Mousavi consulted with Dr. Terry Cole, a board-certified specialist in 

obstetrics and gynecology. He determined Mousavi suffered from uterine fibroids, 

ovarian cysts and excessive menstrual bleeding. Her past surgical history included 
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multiple caesarean sections, an ectopic pregnancy, bowel resection and abdominoplasty 

(tummy tuck). 

Mousavi elected to have Dr. Cole perform a total abdominal hysterectomy 

and right ovary removal. He made the initial incision to open the abdomen, but was 

unable to identify the pelvic structures due to extensive adhesions and scar tissue from 

Mousavi's past surgeries. Because he could not safely remove the uterus and ovary at 

that point, Dr. Cole requested Dr. James D. Woodburn's assistance. Dr. Woodburn 

performed extensive lysis of the adhesions and scar tissue to expose the pelvic structure. 

Once this process was completed, Dr. Cole removed the uterus and ovary. Dr. Woodburn 

closed the surgical wound without any reported complications. 

While recovering in the post-anesthesia surgical care unit, Mousavi began 

yelling, acting out and complaining of intense pain. She repeatedly got out of bed 

unassisted so that she could leave the floor to smoke. Following an argument with her 

husband, Mousavi was found in a fetal position on the floor. She continued to yell at the 

nurses and staff members. A CMH social worker was called in to assist her. 

Notwithstanding her behavior, the nurses and support staff managed to 

monitor Mousavi's vital signs and to follow all doctors' orders, including pain medication 

administration. Two days after admission, Mousavi discharged herself against medical 

advice. She returned to CMH that same evening and was seen by Dr. Alex Kowblansky

in the emergency department. The on-call gynecologist, Dr. Michael Green, re-admitted 

her for pain complaints. She continued to yell and act out, causing Dr. Green to order a 

psychiatric consult. A few hours later, before she could be fully evaluated, Mousavi 

again discharged herself against medical advice. She took a taxi to another hospital, 

where she was diagnosed with a distal right ureter injury. She underwent a successful 

ureter re-implantation the next day. 

Mousavi filed a first amended complaint against CMH, Dr. Woodburn, Dr. 

Green, Dr. Kowblansky and several other defendants alleging (1) aggravated assault, (2) 

assault and battery of a high and aggravated nature, (3) false imprisonment, (4) fraud, (5) 

breach of duty, (6) gross negligence, (7) negligent and intentional infliction of emotional 
3

distress and (8) medical malpractice. CMH demurred to all eight causes of action. The 

trial court sustained the demurrer as to all but the medical malpractice claim. The trial 

court subsequently granted CMH's motion for summary judgment, concluding that CMH 

had established that no triable issue of material fact exists as to both liability and 

causation, and that Mousavi cannot show that CMH breached the standard of care.1

Mousavi appeals. 

DISCUSSION

Mousavi, who is self-represented, purports to appeal both the demurrer and 

summary judgment rulings, but her opening brief is confusing and disjointed in most 

respects. Mousavi does not address the claims that were dismissed on demurrer. Nor 

does she suggest how the complaint could be amended to correct the pleading 

deficiencies. She also makes a number of factual and legal assertions without explaining 

their significance to the trial court's rulings or providing adequate supporting legal 

authority or citations to the record. In some instances, she simply poses a question (e.g., 

"Why is expert testimony required in this matter?") without offering any further 

explanation or discussion. 

Judgments are presumed correct and it is the appellant's burden to 

affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; 

Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) That 

Mousavi is self-represented does not change this burden. (Dowden v. Superior Court

(1999) 73 Cal.App.4th 126, 129-130; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-

1247.) We are not required to examine undeveloped claims or to make arguments for the 

parties. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106; Kim v. Sumitomo 

Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required to consider points not 

supported by citation to authorities or record].) 

 

1 The trial court also granted motions for summary judgment filed by Drs. 

Woodburn and Green. We affirmed the summary judgment in Dr. Woodburn's favor. 

(Mousavi v. Woodburn (Oct. 1, 2014, B251529) [nonpub. opn.].) Her two appeals from 

the summary judgment in Dr. Green's favor were dismissed for failure to file opening 

briefs. (Mousavi v. Green (May 12, 2015, B259296); Mousavi v. Green (Mar. 26, 2015, 

B258195).) CMH is the only respondent in this appeal. 
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Although we could affirm the summary judgment on the basis that Mousavi 

has failed to present understandable, persuasive or supported arguments on appeal, we are 

mindful that important rights are at stake. (See Cal. Rules of Court, rule 8.204(a)(1); see 

Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856-857.) We 

therefore have examined the record for evidentiary and legal support for the summary 

judgment. 

Standard of Review

We review the trial court's decision granting summary judgment de novo 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860), applying the same threestep analysis required of the trial court. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 

1431-1432.) After identifying the issues framed by the pleadings, we determine whether 

the moving party has established facts justifying judgment in its favor. If the moving 

party has carried its initial burden, we then decide whether the opposing party has 

demonstrated the existence of a triable issue of material fact. (Id. at p. 1432.) We strictly 

construe the moving party's evidence and liberally construe the opposing party's 

evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839.) A triable 

issue of material fact exists if the evidence would allow a reasonable trier of fact to find 

the underlying fact in favor of the party opposing the motion in accordance with the 

applicable standard of proof. (Aguilar, at p. 850.)

Medical Malpractice Claim

To prove a medical malpractice claim, the plaintiff must establish the 

applicable standard of care and a breach of that standard. (Hanson v. Grode (1999) 76 

Cal.App.4th 601, 607; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Powell).) 

"Because the standard of care in a medical malpractice case is a matter 'peculiarly within 

the knowledge of experts' [citation], expert testimony is required to 'prove or disprove 

that the defendant performed in accordance with the standard of care' unless the 

negligence is obvious to a layperson." (Johnson v. Superior Court (2006) 143 

Cal.App.4th 297, 305.) Similarly, "'[c]ausation must be proven within a reasonable 

medical probability based upon competent expert testimony. . . .'" (Dumas v. Cooney
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(1991) 235 Cal.App.3d 1593, 1603; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498

[competent expert testimony necessary to establish negligent conduct caused patient's 

injury].)

A medical malpractice defendant who supports a summary judgment 

motion with applicable expert declarations "'. . . is entitled to summary judgment unless 

the plaintiff comes forward with conflicting expert evidence.'" (Munro v. Regents of 

University of California (1989) 215 Cal.App.3d 977, 984-985; Powell, supra, 151 

Cal.App.4th at p. 123.) CMH's moving papers offered the declarations of Robert T. 

Goldweber, M.D. (emergency medicine), Michael J. Gitlin, M.D. (psychiatry), James 

Dunn, M.D. (surgery) and Margaret Cote, R.N. (nursing) to establish that the care and 

treatment provided by CMH met the standard of care and did not cause or contribute to 

her alleged injuries. Mousavi responded by (1) requesting a stay pending her appeal of 

the summary judgment in Dr. Woodburn's favor or additional time to oppose the motion, 

(2) objecting to all of CMH's evidence and (3) submitting the declaration of Janet Blok 

Scott, R.N., a nurse from Arkansas. Mousavi did not submit a separate statement in 

opposition or any evidence other than Nurse Scott's declaration. 

Where, as here, a moving party makes the required prima facie evidentiary 

showing, the failure to file a responsive separate statement may, in the court's discretion, 

constitute a sufficient ground for granting the motion. (Code Civ. Proc., § 437c, subd. 

(b)(3); Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 

554, 568; Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 

Cal.App.4th 820, 831-833.) Although the trial court discussed and could have invoked 

this rule, it exercised its discretion to resolve the motion on the evidence presented. 

The standard of care in medical malpractice cases is the reasonable degree 

of skill, knowledge and care ordinarily possessed and exercised by members of the 

medical profession under similar circumstances. (Mann v. Cracchiolo (1985) 38 Cal.3d 

18, 36; see Evid. Code, § 720, subd. (a).) The test for determining familiarity with the 

standard of care is knowledge of similar conditions. (Sinz v. Owens (1949) 33 Cal.2d 
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749, 756; see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 

463, 470.) 

Mousavi did not present any expert evidence on the standard of care for 

physicians. Nurse Scott opined in her declaration that CMH violated the standard of care 

for nurses in an acute care setting by failing to assess and appropriately respond to 

Mousavi's complaints of pain and to certain critical laboratory results. She stated that 

"[t]hese failures on the part of [CMH] resulted in a failure to identify and treat 

postoperatively anemia and acute renal failure from an obstructed disconnected ureter." 

Respondents contend that Nurse Scott's declaration is insufficient to 

demonstrate the existence of a triable issue of material fact. We agree. First, it did not 

establish that Nurse Scott is familiar with the standard of care for nursing in this 

community. She is licensed in Arkansas but has never been licensed in California. She 

also has not worked in an acute care hospital setting since 1976. Second, her declaration 

offered nothing more than her ultimate conclusions. "[A]n expert's opinion rendered 

without a reasoned explanation of why the underlying facts lead to the ultimate 

conclusion has no evidentiary value because an expert opinion is worth no more than the 

reasons and facts on which it is based." (Powell, supra, 151 Cal.App.4th at p. 123, 

citations and internal quotes omitted; see Evid. Code, §§ 801, 802, 803; Kelley v. Trunk

(1998) 66 Cal.App.4th 519, 523.) Finally, Nurse Scott's declaration neglected to lay the 

foundation for her qualifications to state an opinion as to causation. (See Bromme v. 

Pavitt, supra, 5 Cal.App.4th at p. 1498.) For these reasons, Mousavi's medical 

malpractice claim fails as a matter of law.2  

Mousavi contends the trial court should have invoked its authority under 

Evidence Code section 730 to appoint an expert to respond to CMH's expert evidence. 

Mousavi's opposition did not request appointment of an expert; nor did she raise the issue 

at the hearing on the motion. Consequently, the issue was waived. (See Ventura v. ABM 

 

2 Mousavi suggests that Drs. Cole, Woodburn and Green are the "ostensible

agents" of CMH and that CMH is liable for their actions on that basis. Mousavi did not, 

however, present any evidence or reasoned argument on this issue. 
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Industries Incorporated (2012) 212 Cal.App.4th 258, 265 [failure to seek ruling from 

trial court forfeited issue on appeal].) 

The trial court also did not abuse its discretion by denying Mousavi's 

requests to stay the motion for summary judgment or to otherwise extend the time for her 

to oppose it. She filed no declaration supporting either request and made no showing that 

a stay would be appropriate or that a continuance would result in the receipt of facts 

essential to opposing the motion. (See Ace American Ins. Co. v. Walker (2004) 121 

Cal.App.4th 1017, 1023; Combs v. Skyriver Communications, Inc. (2008) 159 

Cal.App.4th 1242, 1269-1270.) We conclude the motion was properly granted. 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
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Mark Borrell, Judge

Superior Court County of Ventura

______________________________

Morvarid Mary Mousavi, in pro. per., for Plaintiff and Appellant.

Clinkenbeard, Ramsey, Spackman & Clark, LLP, Barbara A. Carroll, for 

Defendant and Respondent.