Filed 8/30/24 Lockhart v. USC Verdugo Hil ls Hospital CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

CHARLENE LOCKHART

,

Plaintiff and Appellant

,

v.

USC VERDUGO HILLS HOSPITAL

et al.

,

Defendant s and Respondent s

. B322097

Los Angeles County

Super. Ct. No. 20STCV42088

APPEAL from judgment of the Superior Court of Los

Angeles County. Audra M. Mori , Judge. Affirmed

.

Charlene Lockhart, in pro. per., for Plaintiff and Appellant.

Fraser Watson & Croutch, Louise M. Douville and

Matthew A. Yarvis for Defendant s and Respondent s

.

___________________________2 Plaintiff Charlene Lockhart is the mother of Adam Bailey,

who died in 2020 after receiving treatment at USC Verdugo Hills

Hospital (VHH)

. Later that same year, plaintiff sued University

of Southern California and Dr. David Tashman, who treated

Mr. Bailey at VHH. Defendants contend that VHH , not

University of Southern California, is a proper defendant in this

action

. VHH and Dr. Tashman participated in the proceedings

below and have responded on appeal. We refer to VHH and the

named defendants

, collectiv ely

, as “defendants.”

The trial court granted defendants’ motion for summary

judgment , apparently because defendants offered expert

testimony that they met the standard of care in treating

Mr. Bailey and plaintiff offered no ex p ert testimony to the

contrary. Plaintiff appeal ed and we now affirm.

BACKGROUND

Plaintiff does not provide a factual background supported

by proper record citations. We therefore limit our recitation of

the background facts to those seemingly agreed by the parties in

their briefs and otherwise ascertained from the limited record

furnished on appeal

. Mr. Bailey presented to VHH on April 4, 2020

, with acute

testicular pain. He suffered from a number of other preexisting

conditions. As part of his care, Dr. Tashman ordered a 4

-

milligram dose of morphine. Mr. Bailey later showed signs of

severe respiratory distress

. He was admitted to the ICU where

further intervention was unsuccessful. He died there on April 7,

202 0.

Plaintiff sued defendants in November 2020 , asserting a

single cause of action for wrongful death resulting from3

defendants’ alleged professional negligence. At the time, plaintiff

was represented by counsel.

Several months later, d efendants moved for summary

judgment. Their separate statement of undisputed facts and

their motion both refer to testimony from Raymond Ricci, M.D.,

that defendants’ care complied with the applicable standard of

care and that no act or omission on the part of defendants caused

or contributed to Mr. Bailey’s death. Dr. Ricci’s declaration is

included in the record as an attachment to defendants’ motion.

At the initial hearing on the matter, in November 2021, the

trial court noted plaintiff had recently agreed to relieve her

counsel from representing her. It continued the hearing to

permit plaintiff to obtain new counsel. Plaintiff did not obtain

new counsel and elected to proceed in prop r ia persona

.

About five months later, in April 2022, the trial court

entered an order granting defendants’ summary judgment

motion. That order, prepared by defense counsel, refers to a

mi nute order issued in February 2022 as stating the reasons for

granting the motion. The court’s February 2022 minute order is

not in the record. Nor is any transcript of the summary judgment

proceeding.

Plaintiff filed a timely notice of appeal. On appeal, plaintiff

continues to act in prop r ia persona

.

DISCUSSION

1. Summary Judgment Standard of Review

“ ‘ A trial court should grant summary judgment “ 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. ” [Citation.] A defendant may establish its

right to summary judgment by showing that one or more4

elements of the cause of action cannot be established or that

there is a complete defense to the cause of action . [Citation.]

Once the moving defendant has satisfied its burden, the burden

shifts to the plaintiff to show that a triable issue of material fact

exists as to each cause of action. [Citation.] A triable issue of

material fact exists where “ 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.” ’ ” (

Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301

( Abdulkadhim ).)

“ ‘ “ We review the trial court ’ s decision de novo, considering

all the evidence set forth in the moving and opposition papers

except that to which objections were made and sustained. ” ’ ”

( Abdulkadhim

, supra

, 53 Cal.App.5th at p. 301.)

“ ‘ On review of a summary judgment, the appellant has the

burden of showing error, even if he did not bear the burden in the

trial court. ’ ” (

Abdulkadhim

, supra

, 53 Cal.App.5th at p. 301.)

“ ‘ “ As with an appeal from any judgment, it is the appellant ’ s

responsibility to affirmatively demonstrate error and, therefore,

to point out the triable issues the appellant claims are present by

citation to the record and any supporting authority. In other

words, review is limited to issues which have been adequately

raised and briefed. ” ’ ” ( Ibid. ) This responsibility can only be met

on the basis of an adequate record. Thus, an appellant’s failure

to provide an adequate record is a sufficient basis for affirmance.

(See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140

- 1141.)

These rules apply with equal force to represented and pro

se litigants. ( See Rappleyea v. Campbell (1994) 8 Cal.4th 975,

984

- 985 ; id. at p. 985 [ “A doctrine generally requiring or

permitting exceptional treatment of parties who represent5

themselves would lead to a quagmire in the trial courts, and

would be unfair to the other parties to litigation.”].)

2. Plaintiff Fails to Demonstrate Error in the Trial

Court’s Grant of Summary Judgment

.

Plaintiff’s opening brief contains no discussion of the trial

court’s ruling nor any basis on which to conclude she met her

burden of showing error. This omission is sufficient to warrant

affirmance. ( Christoff v. Union Pacific Railroad Co

. (2005)

134 Cal.App.4th 118, 125 [“ an appellant ’ s failure to discuss an

issue in its opening brief forfeits the issue on appeal ”].)

In her reply, plaintiff contends the trial court erred by

admitting defendants’ expert testimony, claims it was “next to

impossible ” for her to obtain an expert of her own, and invites

this court to eliminate the requirement that medical mal practice

be established by expert testimony except in cases involving

“highly complex and technical issues.” As p laintiff offers no

reason for holding these arguments until her reply

, we deem

them waived. (See Murray & Murray v. Raissi Real Estate

Development, LLC (2015) 233 Cal.App.4th 379, 388

- 389 [deeming

waived arguments “ raised for the first time on reply and [which

appellant] made no attempt to show good cause why [they] should

[be] consider[ed]”].)

Even if we were to consider her new reply arguments

, plaintiff would still fail to show error. Plaintiff contends Dr. Ricci

did not qualify as an expert under Health and Safety Code

section 1799.110, subdivision (c)

, 1 because “[t]he position that

1 Health and Safety Code section 1799.110, subdivision (c)

provides, in its entirety: “ In any action for damages involving a

claim of negligence against a physician and surgeon providing6

[he] holds at his hospital, is one at a high administrative level.”

Plaintiff offers no record citation for this assertion. Dr. Ricci’s

declaration is that he has “continuously served as a Staff

Physician within the Department of Emergency Medicine at

Hoag Memorial Hospital Presbyterian” since 1988. He adds that,

“[f]rom 2012 to the present, I have served as the Chief of

Service

- Emergency Department at Hoag Hospital. I have also

served as the Vice Chairman, Department of Emergency

Medicine at Hoag Hospital since 2007.” Plaintiff offers no

argument or authority that a practicing staff physician who also

serves in administrative roles cannot qualify as an exp ert for

purposes of section 1799.110, subdivision (c). The statute makes

no such exception and we see no reason to create one.

Plaintiff likewise offers no authority that any difficulty she

encountered in obtaining an expert of her own could excuse her

from the requirement that she introduce expert testimony to

defeat defendants’ summary judgment motion once defendants

came forward wit h Dr. Ricci’s testimony . (See, e.g., Fernandez v.

Alexander (2019) 31 Cal.App.5th 770, 779

, quoting Bozzi v.

Nordstrom, Inc

. (2010) 186 Cal.App.4th 755, 761

- 762 [‘ “ When the

emergency medical coverage for a general acute care hospital

emergency department, the court shall admit expert medical

testimony only from physicians and surgeons who have had

substantial professional experience within the last five years

while assigned t o provide emergency medical coverage in a

general acute care hospital emergency department. For purposes

of this section, ‘ substantial professional experience ’ shall be

determined by the custom and practice of the manner in which

emergency medical coverage is provided in general acute care

hospital emergency departments in the same or similar localities

where the alleged negligence occured [ sic ]

. ”7

moving party produces a competent expert declaration showing

there is no triable issue of fact on an essential element of the

opposing party ’ s claims, the opposing party ’ s burden is to produce

a competent expert declaration to the contrary ’ ”] .) In any event,

p laintiff admits hiring expert witnesses. She simply decided

against using them.

Finally, we would decline plaintiff’s invitation to cast aside

the longstanding rule in California that medical negligence cases

ordinarily require proof of causation by expert testimony. (S ee,

e.g., Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1492

- 1493

[“ a plaintiff who alleges a statutory cause of action for wrongful

death arising from medical negligence must prove by reasonable

medical probability based on competent expert testimony that a

defendant ’ s acts or omissions were a substantial factor in

bringing about the decedent ’ s death ”]; Lattimore v. Dickey (2015)

239 Cal.App.4th 959, 97 0 [requiring proof of causation within a

reasonable medical probability based upon competent expert

testimony ] ; E

spinosa v. Little Co. of Mary Hospital (1995) 31

Cal.App.4th 1304, 1316 [ same] ; see also Scott v. Rayhrer (2010)

185 Cal.App.4th 1535, 1542 [ recognizing limited exception “when

a foreign object, such as a sponge or surgical instrument, is left in

a patient following surgery”] .)

DISPOSITION

The judgment is affirmed

. Defendants are to recover their

costs on appeal.

GRIMES

, Acting P. J.

WE CONCUR :

WILEY , J. VIRAMONTES , J.