Filed 8/30/24 Lockhart v. USC Verdugo Hills 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.,

Defendants and Respondents.

 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 Defendants and Respondents.

___________________________
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, collectively, 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 expert testimony to the 

contrary. Plaintiff appealed 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, 

2020. 

Plaintiff sued defendants in November 2020, asserting a 

single cause of action for wrongful death resulting from 
3

defendants’ alleged professional negligence. At the time, plaintiff

was represented by counsel. 

Several months later, defendants 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 propria 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 

minute 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 propria 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 more 
4

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 represent
5

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 malpractice

be established by expert testimony except in cases involving

“highly complex and technical issues.” As plaintiff 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 providing 
6

[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 expert 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 with 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 to 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,

plaintiff 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. (See,

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, 970 [requiring proof of causation within a

reasonable medical probability based upon competent expert

testimony]; Espinosa 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.