Filed 5/4/18; Certified for Publication 5/21/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOHN DOE, a Minor, etc.,

Plaintiff and Appellant,

v.

GOOD SAMARITAN HOSPITAL,

Defendant and Respondent.

F073934

(Super. Ct. No. S1500CV280615)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. 

Chapin, Judge.

Law Offices of Ralph B. Wegis, Ralph B. Wegis, Barry E. Rosenberg and Edward 

Gordon for Plaintiff and Appellant.

Lebeau • Thelen, Patrick Charles Carrick and Alan J. Mish for Defendant and

Respondent.

-ooOoo-
INTRODUCTION

Appellant alleges that he was sodomized by his roommate, K.W., while a patient 

in the adolescent psychiatric unit of respondent Good Samaritan Hospital Southwest 

(Hospital). He brought this action alleging that Hospital was negligent in placing K.W. 

in a room together with appellant, and limiting its efforts to supervise these patients to 

observation of each of them at 15-minute intervals, including not ordering one-on-one 

supervision. K.W.’s intake papers indicated that his hospitalization was involuntary, he 

recently had assaulted and injured his stepfather, and his younger siblings had to be 

protected from K.W. as a precaution.

Hospital brought a summary judgment motion, supported by a psychiatric nurse’s

expert declaration, on grounds that it did not breach its duty of professional care in any 

respect or contribute to appellant’s injury in any way. The breadth of this conclusory 

opinion purportedly covers all aspects of Hospital’s provision of care, and all of 

appellant’s theories of liability, including the patients’ admission and room assignments; 

Hospital’s observations of the patients pursuant to its protocols and procedures; and its 

standards, plans and actions to generally supervise and ensure the safety of patients 

confined there for psychiatric treatment. Despite these multiple and complex issues, the 

nurse’s declaration is little more than three pages long, does not differentiate between the 

issues, and predominantly contains ultimate facts and conclusions without underlying 

facts supported by evidence. Inasmuch as there are scant underlying facts, there also is 

no reasoned explanation by the expert as to how relevant facts and circumstances led to 

her conclusions.

Hospital’s expert generally opined that Hospital satisfied the applicable standard 

of professional care by discharging the treating physician’s medical recommendations for 

both patients, including that it performed observations of each of them at the physician’s

recommended 15-minute intervals, and concluded that one-on-one supervision was not 

warranted under the circumstances of the case. Appellant failed to qualify any of its 

witnesses as hospital experts, leaving Hospital’s conclusory expert declaration 

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unopposed. The trial court granted the summary judgment motion, finding that appellant 

did not provide admissible evidence in the form of expert testimony to challenge 

Hospital’s expert opinion, and dismissed the case.

Appellant contends on appeal that its evidence should have been admitted on 

grounds that Hospital had an ordinary duty of care, or a professional duty independent of 

the physician’s treatment recommendations, to protect its patients from physical harm 

during their hospital stay and treatment. If an ordinary duty applied, appellant would not 

require an expert. Appellant also contends that even if its claims sound in professional 

negligence, a layperson would understand issues concerning hospital safety based on 

common knowledge and without expertise. But, fundamentally, appellant contends that 

Hospital did not meet its burden as the moving party on summary judgment to foreclose

relief on every theory of liability presented. After independently reviewing the record, 

we conclude that Hospital did not foreclose as a matter of law appellant’s theories of 

negligence raised on appeal. Consequently, the burden did not shift to appellant to 

demonstrate the existence of a triable issue of material fact. Accordingly, even if 

appellant’s evidence was properly excluded, summary judgment should not have been 

granted.

It is well settled that, where an expert declaration does not provide the facts upon 

which its conclusions are based and a reasoned explanation of how such facts led to the 

conclusions, it “does not establish the absence of a material fact issue for trial, as required 

for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 (Kelley).)

Hospital’s expert did not opine specifically as to the standard of care regarding 

room assignments and, consequently, did not dispose of this theory as a matter of 

professional negligence. The assignment of K.W. to appellant’s room and Hospital’s 

supervision of him are central theories of negligence here because of, among other things, 

the severity of the alleged injury and K.W.’s recent violent behavior. The declaration and 

record are devoid of meaningful information and explanation about who makes the room 

assignments and by what standards decisions are made. Consequently, the burden did not 

3.
shift to appellant. Dr. Albert Ma testified as a nonexpert that he was responsible for 

medical treatment only and played no role in making room assignments, including that he 

did not make these. Accordingly, it does not appear from this record that the patients’ 

room assignments were part of the physician’s prescribed medical treatment plan, which 

Hospital contends it implemented in satisfaction of its duty. As a result, there is a 

question whether expert testimony was required to oppose the issue and the question 

remains open and disputed.

As to the theory of hospital safety and negligent supervision, Hospital argues that 

it satisfied its professional duties of care by discharging the doctor’s orders to observe the 

patients at 15-minute intervals. By implication, Hospital contends that its duty was 

confined to doing so. The parties provided supplemental briefing on the legal issue of 

whether the scope of Hospital’s duty to protect its patients from physical harm during 

treatment is broader than or independent of the medical treatment plan. Even assuming 

that there is authority to support appellant’s position, however, the factual record is 

insufficient to conclusively determine the scope of Hospital’s duties to supervise and 

keep its patients safe. Hospital’s expert did not opine specifically or in any detail as to 

Hospital’s applicable protocols and procedures regarding the safety and supervision of 

those confined there for treatment. Without any evidence of Hospital’s standards and 

requirements, there is no basis on which to determine the standard of care, the scope of 

the duty, or conclude that Hospital complied in this case. Nor did the expert testify to 

any details of who performed the observations, what occurred at the observations or how 

long they lasted, rendering the conclusion that there was nothing to indicate the need for 

increased supervision specious. The absence of a meaningful, factual analysis by 

Hospital’s expert precludes Hospital from affirmatively defeating the claim as a matter of 

law as it was required to do.

The law is clear that moving party’s burden to show the absence of any genuine 

issue of material fact cannot be satisfied by an expert declaration consisting of ultimate 

facts and conclusions that are unsupported by factual detail and reasoned explanation, 

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even if it is admitted and unopposed. Hospital did not foreclose as a matter of law each

of appellant’s three theories of negligence. Under these circumstances, summary 

judgment was not proper. In further proceedings below, as to the theories of negligent 

room assignments, patient supervision and hospital safety, the trial court will be required 

to determine the nature and scope of Hospital’s duties, as well as whether expertise is 

required to establish applicable standards of care and whether they were breached, in 

accordance with the views expressed herein. We remand so that the trial court will have 

the benefit of relevant facts and we will not constrain its conclusions based on this record.

FACTUAL BACKGROUND

“‘Because this case comes before us after the trial court granted a motion for 

summary judgment, we take the facts from the record that was before the trial court when 

it ruled on that motion.’” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716–

717.) We consider all the evidence in the moving and opposing papers, except evidence 

to which objections were made and properly sustained, liberally construing and 

reasonably deducing inferences from appellant’s evidence, and resolving any doubts in 

the evidence in appellant’s favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)1

Appellant, a 12-year-old in the seventh grade, was voluntarily admitted to Hospital 

on November 1, 2012, due to suicidal and homicidal ideations. Specifically, he planned 

to hang himself with a belt due to issues at school. He also had a history of bipolar 

disorder and Asperger’s disorder. The admitting doctor ordered that he be observed 

every 15 minutes and that precautions be taken to minimize his opportunity to harm 

himself or others. Hospital records confirm that appellant was observed by staff every 

15 minutes during his stay.2 Appellant remained at Hospital for nine days and, having 

shown improvement, was released to his parents on November 10, 2012. 

1 Further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.

2 It is noted that the initial decision regarding the level of medical observation was 

made by the admitting physician checking one of three boxes on an “ADMITTING PHYSICIAN 

5.

 
During his stay, Hospital assigned K.W. to share a room with appellant from 

November 5 to November 9, 2012. K.W., a 10-year-old male, was admitted on 

November 5, 2012, to Hospital based on a psychiatric hold. (See Welf. & Inst. Code, 

§ 5150.) According to his initial psychiatric evaluation, K.W. was violent and his parents 

had moved his two- and three-year-old brothers into their room as a safety precaution. 

K.W. had assaulted his stepfather, causing injuries requiring medical attention. The 

intake doctor noted that K.W. had suicidal and homicidal ideations, was irritable, and 

lacked insight and judgment. Like appellant, the admitting physician ordered that K.W. 

be observed every 15 minutes, and records indicate that Hospital personnel performed the 

observations. 

Appellant did not mention any problems during his stay at Hospital involving 

K.W., nor did Hospital’s records indicate any issues. However, at some time unspecified 

in the record, after his discharge, appellant exhibited signs of posttraumatic stress 

disorder of which he eventually was diagnosed. He began to harbor a fear of contracting 

a sexually transmitted disease and to engage in inappropriate sexual behavior, which 

prompted serious concern about the level of psychiatric care appellant would require 

going forward. Roughly six months after his discharge, on April 30, 2013, appellant told 

his parents that K.W. sodomized him on the second night that they shared a room. 

Appellant’s parents contacted law enforcement the same day. With regard to the 

incident, appellant explained that the door to their shared room was open, but K.W. took 

him into the bathroom, closed the door, and committed the sexual assault.

PROCEDURAL BACKGROUND

Acting through a guardian ad litem, appellant filed a negligence lawsuit against

Hospital on October 28, 2013. The complaint alleged that Hospital was negligent in its 

assessment of the patients, by housing appellant and K.W. in the same room, by limiting

ORDERS” form. The form included three boxes—one labeled “Heightened suicidal/homicidal 

precautions,” another stating, “Every 15 minutes, until otherwise ordered by MD,” and the final 

box labeled “Other.” 

6.

 
observation of K.W. to every 15 minutes, and failing to provide supervision of K.W. at 

all times. On October 22, 2015, Hospital filed a motion for summary judgment, asserting 

that it did not breach its professional duty of care, nor was the Hospital’s actions the legal 

cause of appellant’s injuries.

In support of its motion, Hospital provided a declaration of Denise Rounds, a 

registered nurse familiar with the degree of learning and skill ordinarily possessed by 

nurses in psychiatric care in the state of California and the Central Valley. Rounds 

indicated that Ma ordered observations of K.W. every 15 minutes on November 5, 2012, 

and never changed the level of observation during K.W.’s stay. Likewise, Ma began 

seeing appellant on November 6, 2012, and maintained the level of observations of 

appellant at every 15 minutes. Rounds further noted that appellant met with Ma every

day starting on November 6, 2012, and appellant never reported any sexual assault, nor 

did the medical records show any change in the conduct or attitude of appellant that 

would make staff suspect that something inappropriate had occurred.

Rounds concluded that Hospital met its standard of care “regarding the medical 

care and treatment rendered to [appellant] which is the subject of the within litigation.” 

She bases her expert opinion on “the medical records of [appellant] ... for the 

hospitalization which is the subject of the litigation of November 1, 2012 through 

November 10, 2012 as well as selected records from [K.W.], a patient and roommate of 

[appellant] during the same hospital stay and the Bakersfield Police report.” Her review 

of the records indicated to her that the appropriate medical assessments and evaluations 

were performed.

3

3 Appellant’s complaint for medical malpractice and negligence contains 

allegations that refer to Hospital’s physicians, the standard of care applicable to physicians, and 

negligence in the examination, diagnoses and treatment of patients. In the summary judgment 

proceedings and on appeal, appellant argues that the 15-minute observation levels recommended 

by the physicians was inadequate and that constant, one-on-one supervision should have been 

ordered. During oral argument, appellant’s counsel clarified that he is not challenging the 

physicians on their medical diagnoses or treatment plan, including the order for observations at 

15-minute intervals. Further, appellant stated that respondent was not required to negate a theory 

7.

 
Rounds testified that Hospital could have performed one-on-one observations in 

which staff would be within arms-length of K.W., if needed, but there was no indication 

in this case that a higher level of observation other than the 15-minute intervals as 

ordered by the psychiatrist was necessary. Based on the protocol and procedures that 

were in place and followed by Hospital, Rounds opined that Hospital met its standard of 

care. Rounds’s declaration does not identify or contain factual detail of any of Hospital’s 

protocols and procedures or how they were complied with, who performed the 

observations, what was observed, or how long the observations lasted.

Appellant did not provide expert opinion to challenge Rounds’s conclusions in his 

opposition to the summary judgment motion. Instead, appellant argued that his treating 

health care providers could provide evidence of the standard of care and presented 

deposition testimony of various percipient witnesses to rebut Rounds’s declaration. 

Based on the evidence presented by the percipient witnesses, appellant argued that 

Hospital breached its standard of care by not assigning K.W. to one-on-one supervision 

and for housing K.W. and appellant as roommates. 

On April 18, 2016, the trial court granted the summary judgment motion and 

entered judgment in favor of Hospital. Based on the expert opinion of Rounds, the court 

found that Hospital met its burden of proof regarding the standard of care of appellant 

and that no negligent act of Hospital caused appellant’s injury. While the court agreed 

with appellant that Hospital staff may be qualified to present expert testimony as to the 

standard of care, however, appellant failed to provide any foundation regarding the 

witnesses’ qualifications to testify as hospital experts. Accordingly, the court held that 

by failing to present any admissible expert testimony to contradict Rounds’s opinion, 

that the physicians breached the applicable standard of care in their diagnoses or orders. 

Respondent’s counsel agreed with this understanding. Accordingly, we will not address the 

sufficiency of Rounds’s expert opinion on the issue of physician malpractice.

8.

 
appellant failed to meet his burden of raising a triable issue of fact and found in favor of 

Hospital.4

Appellant brought the instant appeal. Appellant contends that Hospital did not 

negate two theories of negligence alleged in the complaint and we agree.

DISCUSSION

I. Standard of Review

An order granting summary judgment is reviewed de novo. (Biancalana v. T.D. 

Service Co. (2013) 56 Cal.4th 807, 813 (Biancalana).) As a practical matter, “‘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.’” (Simmons v. Superior 

Court (2016) 7 Cal.App.5th 1113, 1124.) A motion for summary judgment is properly 

granted “if 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.” (§ 437c, 

subd. (c); see Biancalana, supra, at p. 813.) “From commencement to conclusion, the 

moving party bears the burden of persuasion that there is no genuine issue of material 

fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 845, fn. omitted (Aguilar); accord, GoTek Energy, Inc. v. 

SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245.)

4 The court specifically overruled the evidentiary objections presented by both 

parties, including appellant’s objections that Rounds’s declaration were argumentative, 

speculative, or cursory. By raising the objections below, the objections are not deemed waived 

under section 437c, subdivision (d); however, by not challenging the ruling on appeal, appellant 

failed to meet his burden of demonstrating that the trial court’s overruling of his objections was 

error, as he does not discuss each objection or set forth legal argument or authority to support his 

challenge. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be supported by argument 

and, if possible, by citation to authority].) Appellant has therefore abandoned issues of the 

declaration’s admissibility. (See, e.g., Salas v. Department of Transportation (2011) 198 

Cal.App.4th 1058, 1074 [failure to demonstrate how each evidentiary ruling was erroneous 

constitutes a forfeiture of challenge].) This does not, however, preclude him from arguing that 

the evidentiary value of the declaration is limited, as discussed at length herein.

Additionally, Hospital challenges the admissibility of a police report on appeal; 

however, the evidence included in the report is not relevant.

9.

 
A defendant moving for summary judgment must show that one or more elements 

of the plaintiff’s cause of action cannot be established or show there is a complete 

defense to the plaintiff’s cause of action. (§ 437c, subd. (p)(1), (2); accord, Aguilar, 

supra, 25 Cal.4th at p. 849.) It is not until the defendant meets this burden that the 

burden of production shifts to the plaintiff to show that a triable issue of one or more 

material facts exists as to the defense. (§ 437c, subd. (p)(2); accord, Aguilar, supra, at 

p. 850.) In conducting our review, we must identify the issues to be considered on the 

motion for summary judgment, which are defined by the pleadings. (Conroy v. Regents 

of University of California (2009) 45 Cal.4th 1244, 1250.) Significantly, as to each claim 

as framed by the complaint, “‘“the motion must respond by establishing a complete 

defense or otherwise showing there is no factual basis for relief on any theory reasonably 

contemplated by the opponent’s pleading.”’” (Eriksson v. Nunnink (2011) 191 

Cal.App.4th 826, 848, italics added.)5

If an expert provides an opinion in support of a motion for summary judgment, he

or she must provide the facts upon which the expert’s conclusions are based. “‘“[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. [Citations.]” [Citation.]’” 

(Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.) “[A]n opinion 

unsupported by reasons or explanations does not establish the absence of a material fact 

5 As explained by the California Supreme Court, how a party moving for or 

opposing summary judgment satisfies its burden of production or persuasion “depends on which

would bear what burden of proof at trial.” (Aguilar, supra, 25 Cal.4th at p. 845.) “Thus, if a 

plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for 

summary judgment, he must present evidence that would require a reasonable trier of fact to find 

any underlying material fact more likely than not—otherwise, he would not be entitled to 

summary judgment as a matter of law, but would have to present his evidence to a trier of fact. 

By contrast, if a defendant moves for summary judgment against such a plaintiff, he must present 

evidence that would require a reasonable trier of fact not to find any underlying material fact 

more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but 

would have to present his evidence to a trier of fact.” (Id. at p. 851, fn. omitted.)

10.

 
issue for trial, as required for summary judgment.” (Kelley, supra, 66 Cal.App.4th at 

p. 524, italics added.)

We conduct an independent review of the record, considering all the evidence set 

forth in the moving and opposition papers, except evidence to which objections were 

made and properly sustained by the trial court, and all inferences reasonably drawn from 

the evidence. (§ 437c, subd. (c).) We view the evidence in the light most favorable to 

the party opposing summary judgment, liberally construing the opposing party’s 

submissions and resolving all doubts concerning the evidence in favor of the opposing 

party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We must 

affirm a summary judgment if it is correct on any of the grounds asserted in the trial 

court, regardless of the trial court’s stated reasons.” (Grebing v. 24 Hour Fitness USA, 

Inc. (2015) 234 Cal.App.4th 631, 637.) However, the standards applicable to appellate 

review of a summary judgment are “‘far different from the ... substantial evidence test 

that often governs on appeal’” so that, even if a trial court’s evaluation of the evidence is 

reasonable, “‘summary judgment cannot properly be affirmed unless a contrary view 

would be unreasonable as a matter of law ....’” (Faust v. California Portland Cement 

Co. (2007) 150 Cal.App.4th 864, 877.)

Accordingly, Hospital’s burden was to show that there is no factual basis for relief 

on any theory reasonably contemplated by appellant’s pleadings.

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II. Hospital Failed to Present a Complete Defense to Every Theory of Liability or 

To Demonstrate No Factual Basis for Recovery

Hospital presented an unrebutted expert opinion in support of its motion for 

summary judgment. However, even if appellant did not present competing expert 

testimony, it remained Hospital’s burden to establish a complete defense or otherwise 

show there was no factual basis for relief on any theory presented by appellant. (Eriksson 

v. Nunnink, supra, 191 Cal.App.4th at p. 848.) Appellant correctly notes that if multiple 

theories are pled, “‘the defendant has the burden of demonstrating there are no material 

facts requiring trial on any of them.’” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 

156, 163.) Hospital does not contend otherwise.

This case is analogous to Kelley, supra, 66 Cal.App.4th 519 and Johnson v. 

Superior Court (2006) 143 Cal.App.4th 297, 307 (Johnson). In Kelley, the patient 

developed serious complications (including neurological damage and scarring requiring 

skin grafts) after being treated for a laceration on his arm. (Kelley, supra, at p. 521.) The 

patient called one of his doctors twice after the treatment, complaining about his pain. 

The doctor prescribed more pain medication, but did not inquire about the patient’s 

symptoms or suggest he seek immediate medical care. (Ibid.) The doctor referred the 

patient to his primary care physician, who saw the patient within several days, but he had 

already suffered significant damage. The doctor moved for summary judgment, 

submitting a cursory expert declaration of another doctor, who, after reviewing the 

medical records and relating the patient’s treatment stated, “‘[a]t all times ... [the treating 

physician] acted appropriately and within the standard of care under the circumstances 

presented.’” (Id. at p. 522.)

The court held the declaration was not admissible since it did not disclose the 

matter relied upon in forming the opinion, but ruled that the deficiency was waived by the 

plaintiff’s failure to object. (§ 437c, subd. (d); see Kelley, supra, 66 Cal.App.4th at 

p. 524.) Even though the declaration was admitted, the court held that the expert opinion 

did not establish the absence of a material fact because it was “unsupported by reasons or 

12.
explanations ....” (Kelley, supra, at p. 524.) The court described specific questions 

relevant to the medical scenario there that should have been addressed in the expert 

opinion such as the cause of the complications, whether signs of the complications would 

have been observable by the physicians had they examined the plaintiff, whether a 

reasonable physician would recognize the possibility of severe complications, and 

whether earlier intervention would have mitigated the plaintiff’s injury. (Ibid.) The court 

explained that the summary judgment standard “is not satisfied by laconic expert 

declarations which provide only an ultimate opinion, unsupported by reasoned 

explanation.” (Id. at p. 525; see Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 

Cal.3d 491, 498, fn. 3 [“‘[T]he expert’s [medical] opinion must rest upon relevant facts 

and must consist of something more than a legal conclusion.’”]) Specifically, the Kelley

court explained such a conclusory declaration “does not establish the absence of a 

material fact issue for trial, as required for summary judgment.” (Kelley, supra, at 

p. 524.)

In Johnson, the doctors treated the plaintiff’s prostate cancer by placing 

radioactive material in his prostate gland. (Johnson, supra, 143 Cal.App.4th at pp. 299–

300.) However, the defendant doctors implanted too much radioactive material, thereby 

damaging surrounding tissue and necessitating a colostomy, bladder removal, and other 

related procedures. (Id. at p. 300.) The plaintiff brought a medical malpractice action 

and the physicians filed for summary judgment. (Id. at pp. 299–300.) In Johnson, both 

parties presented competing expert declarations. (Id. at pp. 300–302.) However, the 

court focused on the defendants’ declaration, which provided no detail as to the standard 

of care regarding the amount of radioactive material to use during such a procedure and, 

therefore, failed to provide factual data on which its opinion was based. (Id. at p. 308.) 

Having found the expert opinion conclusory, the court held that it was insufficient to 

establish the nonexistence of a triable issue of material fact, and that the defendants as 

moving parties failed to meet their initial burden on summary judgment. (Ibid.)

13.
Appellant claims that Hospital did not address that it was negligent for placing 

appellant in the same room as K.W., and for not having full-time, one-on-one supervision 

or otherwise ensuring the patients were safe. Hospital contends that all theories as to its 

alleged breach of the standard of care are facets of the same claim and, therefore, relies

on Rounds’s declaration as foreclosing all factual issues on all Hospital matters 

concerning these two patients on grounds that Hospital discharged the doctor’s orders. 

However, there are factual gaps and disputes in the record that are material and prohibit a 

conclusion that Hospital defeated appellant’s claims as a matter of law.

In his complaint, appellant states that Hospital “failed to use the level of skill, 

knowledge, and care in the supervision, control, treatment, caretaking and reporting of a 

minor male child/patient in [Hospital’s] control ... that other reasonably careful 

practitioners would have used in similar circumstances”; that Hospital “negligently and 

carelessly continued to employ, supervise, oversee, restrict, maintain or control such 

patient activities by allowing said patients to room together in bedrooms which left them 

alone together while unsupervised”; and that Hospital “negligently and carelessly 

continued to supervise, oversee, restrict, maintain or control [K.W.’s] activities so as not 

to place him with any other minor.” Further, the complaint specifically alleged

negligence arising from housing K.W. with other patients. The complaint states that 

Hospital “knew or should have known that patient bedrooms are known as potential 

trouble spots due to lack of visibility because they are obstructed from view of hospital 

staff,” and that Hospital was “allowing said patients to room together in bedrooms which 

left them alone together while unsupervised.”

The declaration does not specifically describe the standard of care or, for that 

matter, if there were different standards of care for different portions of Hospital’s 

psychiatric care of appellant. “[T]he standard of care determines ... the minimum level 

of care to which the patient is entitled.” (Alef v. Alta Bates Hospital (1992) 5 

Cal.App.4th 208, 215.) Rounds states in her declaration that “the standard of care was 

met by [Hospital] at all times during the care and treatment of [appellant].” Without any 

14.
elaboration regarding the applicable standard of care and what conduct was required to 

meet it, the expert declaration is legally insufficient.

For example, the declaration does not set forth the standard of care that would 

apply to the assessment and determination of the proper observation level for a particular

patient. The declaration is silent as to the precise or principal purpose(s) of the 

observations recommended by the physicians or an explanation of whether and how the 

recommended observations define the scope of Hospital’s duty to supervise. Does such 

an assessment involve a medical evaluation by a certified psychologist or psychiatrist 

using standardized protocols regarding the level of dangerousness of the patient? Does 

Hospital have additional protocols or procedures in place regarding assessments for 

observation levels? Are there industry standards? The only factor Rounds refers to in 

concluding that increased observations were not required was because “[t]here was no 

prior knowledge of any physical or sexual abuse of [K.W.] that would place the hospital 

on a higher state of alert.” Rounds presents no explanation why prior knowledge of 

physical or sexual abuse of K.W. was the only factor that would influence the level of 

observation. It is evident that other indicators would also be relevant, and possibly more 

important to the determination, such as K.W.’s conduct and propensity towards violence 

or assaultive behaviors at the time he was admitted as a patient at the facility, matters not 

addressed in Rounds’s declaration.

Similarly, with regard to whether Hospital breached its standard of care generally 

to supervise and care for appellant and K.W., Rounds contends that the standard was met 

because Hospital performed the 15-minute interval observations, that there was no

evidence or circumstances that required Hospital to increase its level of supervision, and 

that the protocol and procedures in place by Hospital were followed. Beyond 15-minute 

interval observations and a general reference to Hospital’s protocols and procedures, 

Rounds provided no information. Did Hospital maintain its own policies and procedures 

for supervision of adolescent psychiatric patients? If not, are there other policies or 

guidelines that have been accepted as delineating the standard of care in the field? Based 

15.
on those policies and procedures, were there additional steps that Hospital should have 

taken during its supervision of appellant and K.W.? For example, evidence was 

presented that, absent one-on-one constant supervision, patients could go into the 

bathroom and close the door and not be subject to supervision. Would it violate protocols

and procedures to allow all patients to spend unsupervised time in the bathroom? 

Without any description of Hospital’s protocols and procedures, there is no basis on 

which to determine the standard of care. And without any facts as to the observations, 

there is no basis on which to determine whether those procedures were followed and, if 

not, whether that breached Hospital’s duty of care.

Hospital’s expert opinion is devoid of any discussion regarding the decision to 

assign K.W. to room with other patients, who makes the room assignments or how they 

are made. Nor does the expert provide any of Hospital’s safety protocols or procedures 

as they may relate to room assignments. Is the threat of harm to another patient the only 

factor in determining how to house patients in a psychiatric hospital? If not, what are the 

other factors and are they equally important? What factors were considered in assigning

K.W. to appellant’s room? Accordingly, Hospital has not established the standard of care 

with regard to assigning patients to rooms and whether Hospital breached that standard of 

care. Under these circumstances, Hospital did not prove there was no factual bases for 

appellant’s claims or that it defeated the claims as a matter of law.

Without the benefit of knowing Hospital’s policies, protocols or procedures 

regarding patient safety and supervision, we may only speculate as to the standard of care 

and what may have been required during the observations or other supervision. And 

without the benefit of any facts, we cannot determine whether the standard of care was 

satisfied as a matter of law. It was Hospital’s burden on summary judgment to show that 

no factual basis exists to support appellant’s negligence theories. This burden cannot be 

met by presenting a declaration with no significant evidentiary value.

III. Negligence Theories and Evidence

16.
Appellant contends that his evidence should have been admitted in the 

proceedings below because, contrary to the trial court’s ruling, expertise was not required 

on the issues of room assignment, patient supervision, or general patient safety. Rather, 

appellant argues that these are matters of ordinary negligence or are within the common 

knowledge of a layperson, and an expert is not required in either of those circumstances. 

Inasmuch as we have determined that summary judgment was not proper because 

Hospital’s expert declaration was inadequate, we do not reach the propriety of the trial 

court’s exclusion of appellant’s evidence.

We leave it to the trial court on remand to make determinations on whether each 

Hospital safety issue implicates an ordinary or professional duty and, if professional, 

whether the common knowledge exception applies.6

6 We thank the parties for addressing Martin v. United States (E.D.Cal. July 5, 

2017, No. 2:14-cv-02214-TLN-KJN) 2017 U.S. Dist. Lexis 104597 (Martin), a case that was 

decided after briefing was completed in this appeal and addressed by the parties in supplemental 

briefing. Given our disposition in this matter, the trial court will be required to determine any 

questions the parties may raise concerning that case’s application and effect here.

17.

 
DISPOSITION

The judgment is reversed. The trial court is directed to withdraw its order granting 

summary judgment, and to enter an order denying Hospital’s motion for summary 

judgment. Appellant is to recover his costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(1).)

___________________________

MEEHAN, J.

WE CONCUR:

__________________________

LEVY, Acting P.J.

__________________________

FRANSON, J.

18.
Filed 5/21/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOHN DOE, a Minor, etc.,

Plaintiff and Appellant,

v.

GOOD SAMARITAN HOSPITAL,

Defendant and Respondent.

F073934

(Kern Super. Ct. No. S1500CV280615)

ORDER GRANTING REQUEST 

FOR PARTIAL PUBLICATION

It appearing that part of the nonpublished opinion filed in the above entitled matter 

on May 4, 2018, meets the standards for publication specified in California Rules of 

Court, rule 8.1105(c), IT IS ORDERED that the opinion be certified for publication in the 

Official Reports with the exception of part III. of the Discussion.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P.J.

FRANSON, J.