Andrews v. >Aurora> Charter Oak
Hosp.

















Filed 9/18/12 Andrews v. Aurora Charter Oak Hosp. CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

LESLIE ANDREWS et al., Plaintiffs and Appellants, v. AURORA CHARTER OAK HOSPITAL, Defendant and Respondent.

E053311 (Super.Ct.No. RIC466688) OPINION

APPEAL from the Superior
Court of Riverside
County. John W.
Vineyard, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.

Equity Law Group and Lotfy Mrich for
Plaintiffs and Appellants.

Law Offices of James R. Rogers,
Keith E. Zwillinger and Rachael H. Mills for Defendant and Respondent.

Plaintiffs Leslie Andrews and Holly
Fallon appeal from a summary judgment
in favor of defendant Aurora Charter
Oak Hospital
in a lawsuit alleging the wrongful death of their 18-year-old son, Eric
Andrews. The trial court denied a motion
to continue the summary judgment motion because plaintiffs failed to specify
what admissible evidence they expected to be able to obtain if the continuance
were granted. The trial court granted
the summary judgment motion because plaintiffs failed to produce admissible
evidence showing the existence of triable issues of material fact concerning
plaintiffs’ claims that the hospital was vicariously liable for the negligence
of the attending physician, Dr. Gillespie, and that the hospital was liable for
negligent hiring or supervision of its staff.


We will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs’ operative fourth amended
complaint alleges multiple causes of action arising from the death of
plaintiffs’ 18-year-old son, Eric Andrews (Eric). The complaint alleges that Eric was shot and
killed by Riverside County Sheriff’s deputies on February 28, 2006, following a 911 call by plaintiff Holly
Fallon saying that her son needed help.
Eric had been admitted to Aurora
Charter Oak Hospital
(the hospital) earlier in February on an involuntary hold after threatening
suicide. He was suicidal because of the
break-up of his relationship with a girlfriend.
The complaint alleges that Eric was negligently discharged from the
hospital by his attending physician, William S. Gillespie.

With respect to the hospital, the
complaint alleges negligent infliction of emotional distress (third cause of
action); medical malpractice in Eric’s treatment and discharge by Dr. Gillespie
and unnamed other members of the hospital’s staff (sixth cause of action); and
negligent hiring and supervising of “[d]octors[,] medical staff and employees”
(seventh cause of action).

The hospital filed a motion for
summary judgment or summary adjudication as to the sixth and seventh causes of
action.^[1] Plaintiffs filed opposition to the motion and
requested continuance of the motion for further discovery. The trial court denied the motion to continue
and granted the motion for summary adjudication of the sixth and seventh causes
of action. The court entered judgment
for the hospital. Plaintiffs filed a
timely notice of appeal.

LEGAL ANALYSIS

1.

THE MOTION FOR SUMMARY ADJUDICATION WAS PROPERLY
GRANTED

Standard
of Review

We review orders granting motions
for summary judgment de novo, applying the same rules the trial court was
required to apply in deciding the motion.
(Johnson v. United Cerebral
Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 753.)

A defendant moving for summary
judgment has the burden of demonstrating as a matter of law, with respect to
each of the plaintiff’s causes of action, that one or more elements of the
cause of action cannot be established, or that there is a complete defense to
the cause of action. (Code Civ. Proc., §
437c, subd. (p)(2);^[2] Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) If a defendant’s
moving papers will support a finding in its favor on one or more elements of
the cause of action or on a defense, the burden shifts to the plaintiff to
present evidence showing that a triable issue of material fact actually exists
as to those elements or the defense. (>Aguilar, at p. 849.) In order to meet
that burden, “‘[t]he plaintiff . . . may not rely upon the mere allegations or
denials’ of his ‘pleadings to show that a triable issue of material fact exists
but, instead,’ must ‘set forth the specific facts showing that a triable issue
of material fact exists as to that cause of action or a defense thereto.’ [Citation].”
(Ibid., quoting former § 437c,
subd. (o)(2), now subd. (p)(2).)
Further, the opposing party must produce admissible evidence
demonstrating the existence of a triable issue of material fact. (§ 437c,
subds. (d), (p).) We review a trial
court’s evidentiary rulings on summary judgment for abuse of discretion. (DiCola
v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666,
679.)

The
Trial Court’s Ruling That Plaintiffs Failed to Produce Admissible Evidence in
Support of the Sixth and Seventh Causes of Action Was Not an Abuse of
Discretion.

The sixth cause of action alleged
professional negligence by Dr. Gillespie and other unnamed medical staff at the
hospital. The cause of action
incorporates by reference an earlier allegation that the hospital was
vicariously liable for the actions of Dr. Gillespie and other staff, who were
acting as agents and/or employees of the hospital. The seventh cause of action
alleged that the hospital negligently supervised “[d]octors[,] medical staff
and employees.” In its ruling on the
summary judgment motion, the trial court found that the hospital presented
admissible evidence showing that Dr. Gillespie was neither an employee nor
acting as the hospital’s agent, and that the hospital did not directly control
or supervise the care provided by an attending physician such as Dr.
Gillespie. Further, the hospital
produced the declaration of Dr. Mark Kalish, who opined that the hospital and
its employees provided appropriate care for Eric Andrews and that, according to
the hospital’s rules and regulations and accepted medical practice, Dr.
Gillespie, as attending physician, had complete control of the treatment and
discharge of Eric Andrews.

The
trial court held that the burden therefore shifted to plaintiffs to produce
evidence that showed the existence of a triable question of fact concerning Dr.
Gillespie’s status with respect to the hospital and of the hospital’s
negligence in hiring or supervising Dr. Gillespie. However, the court found that in their
separate statement of undisputed and disputed facts, plaintiffs failed to
produce any properly authenticated evidence and failed to cite to any specific
evidence in support of the purported disputed facts. For these reasons, the court granted
the summary judgment motion. We find no
abuse of discretion.

Section 437c, subdivision (b)(3)
provides: “The opposition papers shall
include a separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating whether the opposing
party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly
and concisely any other material facts that the opposing party contends are
disputed. Each material fact contended
by the opposing party to be disputed shall be followed by a reference to the
supporting evidence. >Failure to comply with this requirement of a
separate statement may constitute a sufficient ground, in the court’s
discretion, for granting the motion.”
(Italics added.) Further, rule
3.1350(f) of the California Rules of Court provides that citations to the
evidence in support of a disputed fact “must be supported by citation to
exhibit, title, page, and line numbers in the evidence submitted.”

Plaintiffs’ separate statement of
disputed facts asserted that Dr. Gillespie was the agent and employee of the
hospital and that the hospital did directly control and supervise his care and
treatment of patients. In support of
those purported facts, plaintiffs cited merely to the “medical chart” and
“deposition transcripts.” This does not
comply with section 437c, subdivision (b)(3) and California Rules of Court,
rule 3.1350(f), and plaintiffs do not present any legal analysis or argument as
to why it was an abuse of discretion for the court to grant the motion because
of that lack of compliance.^[3]

In any event, the evidence
plaintiffs describe in their opening brief is not sufficient to meet their
burden. Our Supreme Court has held that
“[t]here is a triable issue of material fact if, and only 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, supra, 25
Cal.4th at p. 850, fn. omitted.) As to
Dr. Gillespie’s alleged status as an employee, the sole evidence plaintiffs
cite is the following excerpt from his deposition:

“Q: Now,
just explain to me your relationship as a doctor with Charter Oak.

“A: My
relationship with Charter Oak‌ I’m an
attending physician there. And I have a
position as a ‑ an associate medical director. . . . [¶] . . .[¶]

“Q: Is
[associate medical director] a salaried position‌

“A: Yes
‑ is it salary‌ I don’t know if
it’s called salary. There’s some
compensation. There’s some – maybe call
it a stipend is maybe a good way to look at it or – I don’t know if I’d call it
a salary. There’s a financial compensation.

“Q: Okay. Is that on a monthly basis‌

“A: Yes,
it is.”

A reasonable trier of fact could not
find, based on that evidence alone, that plaintiffs had proven by a
preponderance of the evidence that Dr. Gillespie was an employee of the
hospital rather than an independent contractor.
Dr. Gillespie also testified that he maintained an office separate from
the hospital and that his staff billed patients and their insurers for his
services, and the hospital’s medical director likewise stated in a declaration
that Dr. Gillespie had never been an employee of the hospital but was at all
times an independent contractor. The
evidence that Dr. Gillespie received a stipend for his services as associate
medical director does not refute the hospital’s evidence that he was an
independent contractor—the two are not mutually exclusive—and it is not
sufficient, standing alone, to support the conclusion that he was an employee
of the hospital. Similarly, the mere
fact that Dr. Gillespie served as associate medical director is not sufficient,
in and of itself, to prove that Dr. Gillespie was the hospital’s agent. (See Jacoves
v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103-104.)

Plaintiffs’ contentions concerning
the evidence in support of the seventh cause of action, for negligent hiring
and supervision of staff, are even flimsier.
A claim of negligent hiring, retention or supervision requires proof
that the plaintiff suffered damages because the person hired or supervised was
in some manner unfit to perform those duties, and the injury caused must be
directly related to the person’s employment.
(Phillips v. TLC Plumbing, Inc.
(2009) 172 Cal.App.4th 1133, 1139-1140.)
Plaintiffs assert that the hospital is liable for their damages because
Dr. Gillespie and unnamed hospital personnel were “not properly credentialed[,]
not members in good standing[, and] responsible for the premature release of
. . . Eric Andrews.” The
hospital produced evidence that Dr. Gillespie was properly credentialed and
properly screened for appointment and reappointment to its staff, and
plaintiffs produced no evidence to the contrary. Moreover, in the context of this case, the
hospital’s liability for negligent hiring, retention or supervision depends
upon a finding that Dr. Gillespie or other medical staff were negligent in
releasing Eric. Whether medical care
falls below acceptable standards can be established only by expert
testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Plaintiffs proffered no expert testimony that
Dr. Gillespie or any hospital employee was negligent. Consequently, they did not meet their burden
of producing evidence showing a triable issue of fact with respect to the
seventh cause of action.

2.

THE DOCTRINE OF PECULIAR RISK DOES NOT APPLY TO
MEDICAL MALPRACTICE

Plaintiffs contended below that if
Dr. Gillespie was indeed an independent contractor, rather than an employee,
the hospital was liable for his negligence under the doctrine of peculiar
risk. They assert that theory on appeal
as well. The trial court held that the
doctrine does not apply to medical malpractice and that plaintiffs had failed
to provide any authority that the doctrine does apply. We agree.

The doctrine of peculiar risk
“pertains to contracted work that poses some inherent risk of injury to
others.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) That doctrine arose from the recognition
“that a landowner who chose to undertake inherently dangerous activity on his
land should not escape liability for injuries to others simply by hiring an
independent contractor to do the work.”
(Id. at pp. 693-694.) “The courts adopted the peculiar risk
exception to the general rule of nonliability to ensure that innocent third
parties injured by the negligence of an independent contractor hired by a
landowner to do inherently dangerous work on the land would not have to depend
on the contractor’s solvency in order to receive compensation for the
injuries.” (Id. at p. 694.)

Plaintiffs have provided no
authority that this doctrine, which originated to hold landowners responsible for the negligence of contractors engaged to
perform work on their property, has ever been applied in the context of medical
malpractice, nor have they made any argument as to why the doctrine should be
so applied. In the absence of such
authority or argument, we need not address their contention. (People
v. Ham (1970) 7 Cal.App.3d 768, 783, overruled on another ground in >People v. Compton (1971) 6 Cal.3d 55,
60, fn. 3.)

3.

THE MOTION TO CONTINUE WAS PROPERLY DENIED

Stating that discovery was still
being conducted, plaintiffs sought to continue the hearing on the summary
judgment motion. The trial court denied
the request because plaintiffs failed to submit a declaration in compliance
with section 437c, subdivision (h).

In pertinent part, section 437c,
subdivision (h) provides: “If it appears
from the affidavits submitted in opposition to a motion for summary judgment or
summary adjudication or both that facts essential to justify opposition may
exist but cannot, for reasons stated, then be presented, the court shall deny
the motion, or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just.” A continuance is “virtually mandated” upon a
proper showing. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Here, however, the declaration of plaintiffs’
attorney stated only that he was “in the middle of discovery” and had sent
notices of deposition for several witnesses.
He did not, however, state what facts “essential to justify opposition”
(§ 437c, subd. (h)) to the
summary judgment motion he expected to obtain via those depositions. In the absence of such a showing, no
continuance was required.

DISPOSITION

The judgment is affirmed. Aurora Charter Oaks Hospital is awarded costs
on appeal.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



MCKINSTER

J.





We concur:



HOLLENHORST

Acting
P. J.



CODRINGTON

J.