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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARGARET WARD, et al.,

Plaintiffs,

v.

THE COUNTY OF MENDOCINO, et al.,

Defendants.

Case No. 17-cv-00911-PJH 

ORDER REGARDING SUMMARY 

JUDGMENT MOTIONS BY 

DEFENDANTS TROTTER, KINDRED, 

AND GOODMAN 

Re: Dkt. Nos. 86, 94

Dr. Marvin Trotter’s motion for summary judgment came on for hearing before this 

court on September 19, 2018. Kathy Goodman’s and Kindred Healthcare Operating, 

Inc.’s (“Kindred”) motion for summary judgment also came on for hearing before this 

court on September 19, 2018. Plaintiffs appeared through their counsel, David Fiol. 

Defendant Trotter appeared through his counsel, Ian Scharg. Defendants Goodman and 

Kindred appeared through their counsel, Matthew Schroeder. Defendants Dr. Michael 

Medvin and California Forensic Medical Group Inc. appeared through their counsel, 

Jerome Varanini. Defendants County of Mendocino, Sheriff Thomas D. Allman, Lorrie 

Knapp, and Michael Grant appeared through their counsel, Brina Blanton. Having read 

the papers filed by the parties and carefully considered their arguments and the relevant 

legal authority, and good cause appearing, the court hereby rules as follows.

BACKGROUND

This is a case brought by the survivors of Earl Ward (“Ward”), a 77-year-old man 

who was taken into custody by the Mendocino County Sheriff's Department following a 

call to the police by his wife, Margaret Ward. See Third Amended Complaint (“TAC”), 
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Dkt. 59 ¶ 1. The court has recounted the complaint’s alleged facts in previous orders 

(Dkts. 39, 51, 77). The operative pleading alleges two causes of action relevant to 

Trotter’s, Goodman’s, and Kindred’s pending motions to dismiss. The third cause of 

action alleges elder abuse in violation of Cal. Wel. & Inst. Code §§ 15600 et seq. against, 

as relevant here, Goodman.1 The fourth cause of action alleges wrongful death based on 

medical negligence against, as relevant here, Trotter, Kindred, and Goodman (who was 

employed by Kindred at the time relevant to the allegations).

DISCUSSION

A. Legal Standard

A party may move for summary judgment on a “claim or defense” or “part of . . . a 

claim or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there 

is no genuine dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law. Id.

A party seeking summary judgment bears the initial burden of informing the court 

of the basis for its motion, and of identifying those portions of the pleadings and discovery 

responses that demonstrate the absence of a genuine issue of material fact. Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the 

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable 

jury to return a verdict for the nonmoving party. Id.

On an issue where the nonmoving party will bear the burden of proof at trial, the 

moving party may carry its initial burden of production by submitting admissible “evidence 

negating an essential element of the nonmoving party’s case[.]” Nissan Fire & Marine 

Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105–06 (9th Cir. 2000); see also

Celotex, 477 U.S. at 324–25 (moving party can prevail merely by pointing out to the 

district court that there is an absence of evidence to support the nonmoving party’s case).

 

1

The court has previously dismissed plaintiffs’ elder abuse claim against Kindred. 

Dkt. 77.
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When the moving party has carried its burden, the nonmoving party must respond 

with specific facts, supported by admissible evidence, showing a genuine issue for trial. 

Fed. R. Civ. P. 56. But allegedly disputed facts must be material—the existence of only 

“some alleged factual dispute between the parties will not defeat an otherwise properly 

supported motion for summary judgment.” Anderson, 477 U.S. at 247–48. 

When deciding a summary judgment motion, a court must view the evidence in the 

light most favorable to the nonmoving party and draw all justifiable inferences in its favor. 

Id. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

B. Trotter’s Unopposed Motion for Summary Judgment for Wrongful Death

Trotter moves for summary judgment of the only cause of action against him, 

wrongful death based on medical negligence. Dkt. 86. He supports his motion with a 

declaration of a retained expert, Dr. Steve Verbinski. Dkt. 86-2. Verbinski submitted an 

opinion that the quality of care and treatment provided to Ward by Graff, a nurse 

practitioner, was in keeping with the standard of care, and that Trotter provided 

appropriate supervision. Verbinski based his analysis on sufficient evidence in the record 

and has opined that all aspects of care provided to Ward under Trotter’s supervision met 

the standard of care.

Plaintiffs filed a statement on non-opposition to Trotter’s motion for summary 

judgment (Dkt. 92), and no other party opposed the motion.

Negligence requires “(a) a legal duty to use due care; (b) a breach of such legal 

duty; and (c) the breach as the proximate or legal cause of the resulting injury.” Ladd v. 

County of San Mateo, 12 Cal. 4th 913, 917 (1996).

The court finds that, in light of Trotter’s evidence and the fact that his motion is 

unopposed by any party, summary judgment for Trotter is appropriate. The evidence 

affirmatively establishes that Trotter was not responsible for any deviations from the 

standard of care, and that Trotter did not breach his duty of care. Trotter’s motion for 

summary judgment is GRANTED. No other causes of action remain as to Trotter.

C. Goodman’s Unopposed Motion for Summary Judgment for Elder Abuse
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Elder abuse claims arise under the Elder Abuse Act found in sections 15600 et 

seq. of the Cal. Welf. & Inst. Code. The statute provides for recovery of costs and 

attorneys’ fees where a plaintiff proves by clear and convincing evidence that (1) the 

defendant is a caretaker or custodian of an elder; (2) the defendant is liable for physical 

abuse, neglect, or financial abuse, and (3) the defendant is guilty of “recklessness, 

oppression, fraud, or malice” in the commission of the abuse. See Winn v. Pioneer Med. 

Grp., Inc., 63 Cal. 4th 148, 160–61 (2016); Worsham v. O'Connor Hosp., 226 Cal. App. 

4th 331, 336 (2014); Cal. Welf. & Inst. Code §§ 15610.57, 15657.

Goodman moves for summary judgment on this count. She argues and provides 

competent evidence demonstrating that she was never a caretaker or custodian of 

Ward—a necessary element of plaintiffs’ elder abuse claim. In support of her motion, 

Goodman offers a sworn declaration of Jodi Wittwer, a Kindred employee. Dkt. 105. 

Wittwer declared that Kindred offered nursing services for individuals who reside in their 

homes or other facilities, but that Kindred itself does not operate its own facilities. Id. ¶ 2. 

Wittwer also declared that Goodman provided medical care to Ward “while he resided at 

a small board and care facility called Magnolia Manor . . . . Magnolia Manor is not 

affiliated with . . . Kindred. Ms. Goodman was not responsible for providing custodial 

care of Mr. Ward’s basic needs; such as nutrition, ambulation, or general hygiene. Her 

responsibility was limited to providing skilled nursing care for Mr. Ward’s surgical wound, 

pursuant to the orders of his physician.” Id. ¶ 5.

Goodman has carried her initial burden of production by submitting admissible 

“evidence negating an essential element of the nonmoving party’s case[.]” Nissan Fire, 

210 F.3d at 1106. Goodman’s motion is unopposed, and no party has responded with 

either argument or evidence showing a genuine issue for trial. As such, Goodman’s 

motion for summary judgment on the third cause of action, for elder abuse, is GRANTED.

D. Goodman and Kindred’s Motion for Summary Judgment for Wrongful Death

Goodman and Kindred jointly move for summary judgment on the TAC’s fourth 

cause of action, for wrongful death based on medical negligence. Dkt. 94. In support of 
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their motion, they submit a declaration of a retained expert, Dr. Patrick Joseph. Dkt. 94-

3. Joseph opines that no act or omission by Goodman was a cause-in-fact of Ward’s 

MRSA infection, and that the MRSA infection resulted in Ward’s death. Instead, Joseph 

opines that Ward’s wound was already infected by the time Goodman began providing 

care. No party offers evidence to rebut or challenge Joseph’s opinion.

Negligence requires “(a) a legal duty to use due care; (b) a breach of such legal 

duty; and (c) the breach as the proximate or legal cause of the resulting injury.” Ladd, 12 

Cal. 4th at 917. Goodman and Kindred argue that Joseph’s opinion negates a necessary 

element of plaintiffs’ negligence claim—that Goodman’s and Kindred’s alleged breach of 

their legal duties caused Ward’s injury—so summary judgment must be granted in their 

favor in the absence of admissible evidence showing a genuine factual dispute for trial. 

But non-moving parties must respond with admissible evidence only when the moving 

party has carried its burden. Here, Goodman and Kindred have failed to carry their 

burden of submitting admissible evidence negating an essential element of plaintiffs’ 

wrongful death claim.

Accepting Joseph’s unopposed opinion as true—including that Goodman did not 

cause Ward to contract MRSA initially—the undisputed facts leave open the possibility 

that Goodman’s alleged failure to care for Ward’s infected wound caused or contributed 

to his death. Goodman and Kindred’s argument would require the court to find that, once 

Ward contracted MRSA, his death was inevitable and Goodman’s actions could not have 

contributed to or prevented it. But even Goodman’s and Kindred’s expert recognizes 

that, were it known that Ward had MRSA, there would have been “a different course of 

treatment,” presumably because different treatment during the time Ward was under 

Goodman’s care could have delayed or prevented his death. Dkt. 94-3 ¶ 26.

In short, plaintiffs’ claim for wrongful death does not hinge on that fact that a 

particular person caused the MRSA infection of Ward’s wound. Rather, it is enough for 

plaintiffs’ wrongful death claim to allege that a number of different people and entities had 

duties of care to Ward, they breached those duties, and each breach contributed to 
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Ward’s death. Kindred’s and Goodman’s motion does not negate any necessary element 

of that claim.

For the reasons stated above, Kindred’s and Goodman’s motion for summary 

judgment with respect to the TAC’s fourth cause of action for wrongful death is DENIED.

CONCLUSION

For the foregoing reasons, Trotter’s unopposed motion for summary judgment is 

GRANTED. Goodman’s unopposed motion for summary judgment of the third cause of 

action, for elder abuse, is GRANTED. Kindred’s and Goodman’s motion for summary 

judgment of the fourth cause of action, for wrongful death, is DENIED.

IT IS SO ORDERED.

Dated: September 24, 2018

__________________________________

PHYLLIS J. HAMILTON

United States District Judge