Nicholas Lewis et al vs Cottage Health Inc et al

Case Number

20CV01587

Case Type

Hearing Date / Time

Mon, 03/04/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment; Motion to Admit Records Under Seal

Tentative Ruling

Nicholas Lewis, et al., vs. Cottage Health, Inc., et al.

Case No. 20CV01587       

Hearing Date: March 4, 2024                                                 

HEARING:              (1) Defendants’ Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

                                    (2) Defendants’ Motion To Admit Records Under Seal

ATTORNEYS:        For Plaintiffs Nicholas Lewis, individually and as guardian ad litem for Philip Jaworski: Garry M. Tetalman, Lauren John Udden, Tetalman & Udden

                                    For Defendants Santa Barbara Cottage Hospital, Inc., and Cottage Health, Inc.: Hugh S. Spackman, Cathy Anderson, Clinkenbeard, Ramsey, Spackman & Clark, LLP

TENTATIVE RULING:

(1) The motion of defendants for summary judgment or, in the alternative, summary adjudication is denied.

(2) The motion of defendants to admit records under seal is granted. Defendants’ Lodgment Of Exhibit C, lodged under seal on March 27, 2023, in support of defendants’ motion for summary judgment, is ordered filed under seal.

(3)  The clerk of the court shall file under seal the “Exhibits In Support Of Motion For Summary Judgment Or Alternatively Adjudication” publicly filed by defendants on March 24, 2023.

(4) The clerk of the court shall file under seal the declaration of J. Lynn Stokes-Pena publicly filed by defendants on October 27, 2023, in support of defendants’ motion to admit records under seal.

(5) On or before March 11, 2024, defendants shall file in the public record a redacted copy of their “Exhibits In Support Of Motion For Summary Judgment Or Alternatively Adjudication” (previously filed on March 24, 2024) from which only Exhibit C is redacted.

(6) On or before March 11, 2024, defendants shall file in the public record a redacted copy of the declaration of J. Lynn Stokes-Pena (previously filed on October 27, 2024) from which only Exhibit C is redacted.

(7) No other court records or records relating to the case are to be sealed at this stage of the proceedings. Only the court, the parties named in this action and their counsel of record are authorized to inspect the sealed records.

(8) Defendants’ counsel, Hugh S. Spackman and Cathy Anderson, are ordered to appear on March 18, 2024, at 10:00 a.m. in this Department, and demonstrate compliance with, or to show cause for any noncompliance with, the court’s orders herein. To the extent defendants have complied with the court’s orders, appearances at the March 18, 2024, order to show cause are not necessary.

Background:

On March 30, 2020, plaintiff Nicholas Lewis (Lewis), individually and as guardian ad litem for Philip Jaworski (Jaworski) (collectively, plaintiffs), filed an original complaint in this action asserting eight causes of action against Cottage Health, Inc. (Cottage Health) and Santa Barbara Cottage Hospital, Inc. (Cottage Hospital) (collectively, defendants): (1) violation of the federal Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. §1395dd); (2) negligence per se; (3) negligence; (4) gross negligence; (5) willful misconduct; (6) negligent infliction of emotional distress; (7) intentional infliction of emotional distress; and (8) professional negligence. On October 8, Lewis filed a first amended complaint (FAC) asserting four causes of action: (1) violation of EMTALA; (2) negligence; (3) intentional infliction of emotional distress; and (4) professional negligence.

On October 21, 2020, defendants Cottage Hospital and Cottage Health, the parent corporation of Cottage Hospital, filed their demurrers and motions to strike the FAC.

On November 16, 2020, the court sustained the demurrers to the FAC. As to the claims by Lewis in his individual capacity, the court sustained the demurrer without leave as to all claims except the claim for intentional infliction of emotional distress on the grounds of lack of standing. The court sustained the demurrer to the remaining causes of action alleged in the FAC for violation of EMTALA, negligence, and intentional infliction of emotional distress, with leave to amend. The court noted that the second cause of action (negligence) and the fourth cause of action (professional negligence) alleged in the FAC were duplicative and sustained the demurrer to the second cause of action on that basis.

On November 24, 2020, plaintiffs filed their SAC asserting eight causes of action against defendants: (1) violation of EMTALA (by Jaworski); (2) intentional misrepresentation (by Lewis); (3) intentional misrepresentation (by Jaworski); (4) tortious interference with contract (by Lewis); (5) intentional infliction of emotional distress (by Lewis); (6) intentional infliction of emotional distress (by Jaworski); (7) professional negligence (by Jaworski); and (8) violation of the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) (the UPA)  (by Jaworski).

On January 11, 2021, defendants filed their demurrer to the first through sixth and eighth causes of action alleged in the SAC on the grounds that these causes of action were not sufficiently alleged. Defendants concurrently moved to strike portions of the SAC.

On March 15, 2021, the court sustained the demurrer of defendants without leave to amend as to the first (violation of EMTALA) and fifth (intentional infliction of emotional distress as to Lewis) causes of action alleged in the SAC, sustained the demurrer with leave to amend as to the second (intentional misrepresentation as to Lewis), third (intentional misrepresentation as to Jaworski), and fourth (tortious interference with contract as to Lewis) causes of action, and otherwise overruled the demurrer. The court granted leave to amend to replace the fourth cause of action with a cause of action under Probate Code section 4742. The Court granted the motion to strike the allegation regarding a motion under Code of Civil Procedure section 425.13. The court otherwise denied the motion to strike.

On March 29, 2021, plaintiffs filed their third amended complaint (TAC) asserting six causes of action: (1) intentional misrepresentation (by Lewis); (2) intentional misrepresentation (by Jaworski); (3) violation of Probate Code section 4742 (by Jaworski); (4) intentional infliction of emotional distress (by Jaworski); (5) professional negligence (by Jaworski); and (6) violation of the Unfair Practices Act (UPA) (Bus. & Prof. Code, § 17000 et seq.) (by Jaworski). As alleged in the TAC:

Plaintiff Jaworski suffered and suffers from brain cancer which causes numerous symptoms including hallucinations and the appearance of schizophrenia. (TAC, ¶¶ 8-9.) On January 2, 2019, Jaworski was brought to Cottage Hospital’s emergency department by Lewis, who is Jaworski’s brother and caregiver, after Jaworski inflicted several lacerations on himself with scissors. (Id. at ¶ 10.)

On January 4, 2019, Lewis met with a Cottage Hospital social worker and with the emergency room doctor, who both stated that they felt that Jaworski was fine and was ready to be discharged. (TAC, ¶ 12.) Lewis explained that Jaworski was not fine and that he believed Jaworski’s cancer had returned. (Ibid.)

On January 6, Lewis received a call from Cottage Hospital asking him to take Jaworski home. (TAC, ¶ 13.) Lewis again spoke to the doctor and stated that he was sure that Jaworski’s cancer had returned based on how Jaworski was behaving. (Ibid.) Lewis asked for another MRI to be performed to confirm, but this request was ignored. (Ibid.) A few hours after this call, Lewis received another call from a different nurse at Cottage Hospital stating that Jaworski had suffered a medical emergency due to a dramatic drop in his sodium levels. (Ibid.) Jaworski was not stable and was not in any position to be transferred. (Ibid.) This emergency led to Cottage Hospital moving Jaworski to the third floor for additional treatment. (Ibid.)

Throughout the remainder of January and February, Jaworski was attended by different doctors and assigned different social workers. (TAC, ¶¶ 14-18.) Plaintiffs believe that the social worker assigned in February hid Jaworski’s cancer diagnoses and did nothing but try to dump Jaworski on a facility that was not equipped to handle a patient as sick as Jaworski. (Id. at ¶ 18.)

The last time Lewis saw Jaworski was on April 16, 2019. (TAC, ¶ 21.) On April 19, when Lewis went to Cottage Hospital to visit Jaworski, he was told that Jaworski was gone. (Ibid.) Lewis had power of attorney over Jaworski and was his caregiver, but no one at Cottage hospital had told him that Jaworski was to be moved and threatened to call security if Lewis did not leave the property. (Ibid.)

After several months of searching, Lewis was finally told by the Social Security office that Jaworski was living in Northridge, California, at a congregate living facility called Best Quality Living. (TAC, ¶ 24.) Best Quality Living does not hold itself out to be a care center for cancer patients and does not have the ability to treat and care for patients like Jaworski. (Id. at ¶ 25.) When Lewis contacted Best Quality Living, he was told that Jaworski was not there. (Ibid.) Lewis called the Los Angeles Public Health Department, which then did a wellness check on Jaworski. (Ibid.) Lewis was informed that Jaworski was clean but unintelligible. (Ibid.) Immediately afterwards, Jaworski was moved to a sister facility called Our Sweet Home in Chatsworth, California, which is nothing more than a room and board facility. (Ibid.) Jaworski is continually being moved around to different locations. (Id. at ¶ 26.)

On August 2, 2019, Lewis received a call from one of the owners of Best Quality Living who asked if Lewis would lie to the Medi-Cal administrator in Santa Barbara County so that they could collect money they could not collect from the insurance. (TAC, ¶ 26.) The owner stated that Cottage Health was supposed to have paid them for the first three months of Jaworski’s stay but they did not. (Ibid.)

Lewis filed a complaint with the California Department of Public Health, which issued a ruling finding in favor of Lewis and confirming that Cottage Health had unlawfully “dumped” Jaworski outside of the county. (TAC, ¶ 24.)

On April 29, 2021, defendants filed their demurrer to the TAC on the grounds that plaintiffs fail to state facts sufficient to allege claims under the first, second, and third causes of action, and that the third cause of action is also uncertain. The demurrer was opposed by plaintiffs.

On July 12, 2021, the Court overruled defendants’ demurrer to the TAC, and deemed the TAC amended to replace “4727” in paragraph 48 with “4742.” On July 23, 2021, defendants filed an answer to the TAC generally denying its allegations and asserting fifteen affirmative defenses. Accordingly, the TAC is the operative pleading.

On March 24, 2023, defendants filed a motion for summary judgment or, in the alternative, summary adjudication of each cause of action alleged in the TAC (the summary judgment motion), on the grounds that the medical care and treatment provided to Jaworski was within the applicable standard of care, that Jaworski was properly transferred to an appropriate skilled care facility, that Jaworski was assessed during his hospitalization and deemed medically competent to make medical decisions, and that Cottage Hospital complied with Jaworski’s request not to inform his brothers about his transfer. Defendants also assert that plaintiffs have produced no competent or admissible evidence demonstrating that Cottage Hospital engaged in any unfair business practices. The motion is opposed by plaintiffs.

In support of the motion, defendants lodged under seal as Exhibit C confidential medical records pertaining to Jaworski (the medical records) maintained by Cottage Hospital and certified by Cottage Hospital’s heath information manager Eva DeLaMora. (See Defendants’ Notice of Lodgment of Exhibit C and Lodgment of Exh. C filed on Mar. 27, 2023.) On October 27, 2023, defendants filed a motion for an order admitting the medical records under seal (the motion to seal). Plaintiff has not filed an opposition or other response to the motion to seal.

Analysis:

(1) The Summary Judgment Motion

A motion for summary judgment “shall be 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 judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “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, 850 (Aguilar).)

A defendant moving for summary judgment bears the burden of persuasion that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [ also noting that a defendant is not required to conclusively negate the element that defendant contends the plaintiff cannot establish].) A moving defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If the moving defendant carries its burden of production, this “causes a shift, and the [plaintiff] is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).)

If the plaintiff fails to meet its burden of proof, the defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the plaintiff to establish anything unless and until the defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty….A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Defendants’ request for judicial notice:

In support of the summary judgment motion, defendants request that the court take judicial notice of the complaint and the TAC. (RFJN at p. 1.) Though not necessary, the court will grant defendants’ request for judicial notice of the complaint and TAC. (Evid. Code, § 452, subd. (d)(1).)

The undisputed or not reasonably disputed background facts common to all causes of action alleged in the complaint:

The parties do not dispute or reasonably dispute the following background facts which defendants contend are common to all causes of action alleged in plaintiffs’ TAC:

Jaworski and Lewis are brothers. (Opp. Sep. Stmt., UMF No. 4 & evidence cited therein.) Jaworski, who has a history of brain tumors and tumor removal surgery, was living with Lewis as of January 2019. (Ibid.) After living with Lewis for several months, Jaworski’s behavior deteriorated and Jaworski gave the appearance of being schizophrenic. (Ibid.)

On January 2, 2019, Lewis found Jaworski stabbing himself with a pair of scissors and rushed him to the emergency department (the ED) at Cottage Hospital. (Opp. Sep. Stmt., UMF No. 5 & evidence cited therein.) In the ED, Jaworski was evaluated by physicians. (Opp. Sep. Stmt., UMF No. 6 & evidence cited therein.) An MRI of Jaworski’s brain was obtained on January 2, 2019, which showed that a lesion in the left temporal lobe was unchanged and likely represented an abnormal clusters of vessels (a cavernoma), and which showed stable postsurgical changes and encephalomalacia, with no acute infarct, aneurysm, or vascular formation. (Ibid.) ED physician Dr. Sylvia Kim had an in-depth conversation with neurology to consult on Jaworski’s case, and Jaworski was seen by neurology and cleared to go home on January 3, 2019. (Opp. Sep. Stmt., UMF No. 7 & evidence cited therein [not reasonably disputed on this point].)

Jaworski’s family stated that they could no longer care for Jaworski and requested that he be sent to a skilled nursing facility. (Opp. Sep. Stmt., UMF No. 8 & evidence cited therein.) Case management was consulted. (Ibid.) A brain CT was performed on January 7, 2019, which showed no acute intracranial abnormality and a stable encephalomalacia within the right cerebellum and inferior right occipital lobe. (Opp. Sep. Stmt., UMF No. 9 & evidence cited therein.) Jaworski remained hospitalized at Cottage Hospital from January 2, 2019 through April 17, 2019. (Opp. Sep. Stmt., UMF No. 10 & evidence cited therein.) At the time of discharge, Jaworski’s diagnoses included schizophrenia, and his active problems included hallucinations, agitation, bilateral deafness, blindness of right eye, ataxia, schizoaffective disorder, cerebral cavernoma, and seizure disorder. (Ibid.)

From the time Jaworski was admitted to Cottage Hospital on January 2, 2019, until his discharge on April 17, 2019, Jaworski received medical treatment from multiple physicians. (Opp. Sep. Stmt., UMF No. 11 & evidence cited therein [not reasonably disputed on this point].) In addition to the MRI on January 2, 2019, Jaworski underwent electroencephalogram (EEG) testing several times during his admission. (Opp. Sep. Stmt., UMF No. 12 & evidence cited therein [not reasonably disputed on this point].) Daily nursing notes establish that ongoing nursing care was provided in the form of patient assessments, which included the taking or recording of Jaworski’s vital signs, obtaining labs, and administering medication. (Opp. Sep. Stmt., UMF No. 13 & evidence cited therein [not reasonably disputed on this point].) During Jaworski’s admission to Cottage Hospital, he was seen by physicians who prepared daily progress notes documenting patient examination, assessment, and plan of care. (Opp. Sep. Stmt., UMF No. 14 & evidence cited therein [not reasonably disputed on this point].)

Between January and April 2019, staff at Cottage Hospital communicated with numerous skilled nursing facilities in an attempt to find placement for Jaworski. (Opp. Sep. Stmt., UMF No. 15 & evidence cited therein [not reasonably disputed on this point].) Jaworski was declined admission to numerous facilities. (Opp. Sep. Stmt., UMF Nos. 16, 17 & evidence cited therein [not reasonably disputed on this point].) Nanci Alvarado, a social worker at Cottage Hospital (Alvarado), worked on Jaworski’s placement inside and outside of Santa Barbara County worked with CenCal to obtain authorization to increase the amount that CenCal would pay to a home care facility, which CenCal agreed to do. (Opp. Sep. Stmt., UMF No. 17 & evidence cited therein.)

On March 27, 2019, All Valley Healthcare agreed to accept Jaworski. (Opp. Sep. Stmt., UMF No. 18 & evidence cited therein [not reasonably disputed on this point].) On March 28, 2019, Alvarado told Paul Jaworski, another brother of Jaworski’s, that all the room and board care facilities in Santa Barbara and Ventura Counties had denied taking Jaworski and that Los Angeles County was the nearest place that could be found. (Ibid.) On April 15, 2019, the owners of Best Quality Care of All Valley Healthcare (the facility) came to Cottage Hospital to meet Jaworski. (Opp. Sep. Stmt., UMF No. 19 & evidence cited therein [not reasonably disputed on this point].) The facility was located in Northridge, specialized in caring for residents with brain injuries and psychiatric diagnoses, and had a nurse case manager. (Ibid.)

On April 17, 2019, Jaworski told Talyana Bebko, R.N. that, although he had initially agreed to be transferred to the facility, he was very concerned that his “brother Nick was in on it”. (Opp. Sep. Stmt., UMF No. 20 & evidence cited therein [not reasonably disputed on this point].) Bebko assured Jaworski that it was his choice whether to be transferred to the facility. (Ibid.) Jaworski requested that his brother not be notified of the transfer and not be told where Jaworski was going, and stated that he was concerned that his brother might show up before transfer. (Opp. Sep. Stmt., UMF No. 21 & evidence cited therein [not reasonably disputed on this point].) Before his discharge on April 17, 2019, Jaworski told his care team he did not want his brothers to know where he was being transferred. (Opp. Sep. Stmt., UMF No. 21 & evidence cited therein [not reasonably disputed on this point].) The care team discussed whether to disclose Jaworski’s location to his brothers, and decided that since Jaworski was deemed mentally capable of making his own decisions and had expressly told his care team not to disclose his location, they would comply with Jaworski’s request. (Ibid.) Jaworski was transferred to the facility on April 17, 2019. (Opp. Sep. Stmt., UMF No. 23 & evidence cited therein.)

The above summary is not intended to be exhaustive and the court has considered all admissible evidence offered in support of and opposition to the motion.

Issue Nos. 1, 2, 3, and 4:

Defendants’ motion seeks adjudication of six issues which are identified in the separate statement. (See Sep. Stmt. at pp. 7, 13, 18, 21, 27 & 30.) In the separate statement, defendants set forth the specific material facts which they contend support each issue.

Issue nos. 1 and 2 state that the claims alleged in the first and second causes of action for intentional misrepresentation are without merit. (Sep. Stmt. at pp. 7 & 13.) Issue no. 3 states that the claim alleged in the third cause of action for violation of Probate Code section 4742 is without merit, and that defendants are immune under the provisions of Probate Code section 4740. (Sep. Stmt. at p. 18.) Issue no. 4 states that the claim alleged in the fourth cause of action for intentional infliction of emotional distress is without merit. (Sep. Stmt. at p. 21.)

“‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; see also, Cal. Rules of Court, rule 3.1350(d)(2) [“[t]he separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion”].)

A triable issue of fact exists “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.) “In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Id. at p. 843.) Furthermore, the court “may not weigh the evidence or conflicting inferences and must deny the motion if there is a single issue of material fact in dispute.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308.)

Plaintiffs submit evidence demonstrating triable issues of fact with respect to issue nos. 1, 2, 3, and 4. For example, in paragraphs 35 and 56 of the moving separate statement, which respectively support issue nos. 1 and 2, defendants assert that during his deposition, Lewis testified that he has not seen Jaworski’s medical records from Cottage Hospital. (Sep. Stmt., UMF Nos. 35, 56 & evidence cited therein.) Defendants contend that this testimony by Lewis is material because it demonstrates that, because Lewis has never seek Jaworski’s medical records from Cottage Hospital, plaintiffs cannot provide credible evidence as to whether defendants made any false representations regarding the medical testing and treatment of Jaworski. (See Motion at pp. 4 & 6; see also Riverside County Community Facilities Dist. No. 87-1 v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653 [“[t]o be ‘material’ for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way”].)

Though defendants argue that they are entitled to summary adjudication of the first and second causes of action because plaintiffs cannot produce evidence to support plaintiffs’ respective claims of intention misrepresentation, the Lewis declaration offered in support of the opposition to the motion shows that Lewis did review Jaworski’s medical records, though not as of the time Lewis was deposed. (See Lewis Decl., ¶ 18, 24.) For this same reason, defendants have failed to establish that plaintiffs cannot reasonably obtain evidence with respect to issue nos. 1 and 2 of which defendants seek summary adjudication. (See Aguilar, supra, 25 Cal.4th at p. 845.)

The same fact set forth in paragraphs 35 and 56 of the moving separate statement also appears in paragraph 91 in support of issue no. 4. Defendants contend that the fact appearing in paragraph 91 further discussed above is also material to whether Jaworski can establish the elements of a claim for intentional infliction of emotional distress. (Motion at p. 11 [arguing that the elements of the fourth cause of action cannot be established because, among other things, Lewis has not seen Jaworski’s medical records].) For the same reasons discussed above, defendants have failed to show that no triable issues of material fact exist with respect to the fourth cause of action for intentional infliction of emotional distress, or that Jaworski cannot reasonably obtain necessary evidence to prove the claim.

For all reasons discussed above, defendants have failed to show that they are entitled to summary adjudication of the first, second, and fourth causes of action alleged in the TAC. Therefore, the court will deny the summary judgment motion with respect to these causes of action. For this same reason, the court will deny the summary judgment motion to the extent it seeks a determination that the entire action is without merit.

In addition, to support issue no. 3 which is directed to the third cause of action alleged in the TAC, defendants assert that Lewis did not show Jaworski’s Advance Healthcare Directive (AHD) to anyone at Cottage Hospital until after Jaworski had been transferred out of Cottage Hospital. (Sep. Stmt., UMF No. 77 & evidence cited therein.) Defendants contend that this fact is material to the adjudication of Jaworski’s claim for violation of Probate Code section 4742, including whether defendants are entitled to statutory immunity, because it “flatly contradict[s]” plaintiffs’ allegations and assumptions regarding whether defendants transferred Jaworski to a different facility without Lewis’ permission or knowledge and whether Cottage Hospital was treating Lewis as Jaworski’s guardian. (See Motion at pp. 7-8.)

Though plaintiffs do not offer evidence demonstrating that Lewis showed the AHD to anyone at Cottage Hospital before Jaworski was transferred to the facility, plaintiffs offer evidence from which a trier of fact could infer that Cottage Hospital was aware of the existence of the AHD. (See Lewis Decl., ¶¶ 10, 14 [stating that Lewis notified staff in the ED that Lewis had the AHD and that a doctor at Cottage Hospital was aware of the AHD and therefore asked Lewis for permission to conduct tests].)

Viewing the inferences that may be reasonably drawn from the evidence presented in the light most favorable to plaintiffs, a trier of fat could infer that Cottage Hospital was aware of the AHD notwithstanding whether Lewis showed the AHD to anyone before Jaworski’s transfer. For this reason, the evidence offered by plaintiffs gives rise to conflicting inferences with respect to the material fact stated in paragraph 77 of the separate statement. The court does not weigh evidence on summary judgment, and “must draw all reasonable inferences from the evidence in the light most favorable to the opposing party.” (Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 600; Blue Mountain Enterprises, LLC. v. Owen (2022) 74 Cal.App.5th 537, 549.) Because defendants have failed to meet their burden show that there exist no triable issues of fact and that defendants are entitled to summary adjudication of the third cause of action alleged in the TAC, the court will deny the summary judgment motion to the extent it seeks adjudication of the third cause of action for violation of Probate Code section 4742.

Issue No. 5:

With respect to issue no. 5, defendants contend that the fifth cause of action for professional negligence alleged in the TAC is without merit.

The pleadings frame the issues to be considered on a motion for summary judgment or adjudication. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Therefore, to meet their burden, defendants must adduce evidence negating the theory of liability alleged in fifth cause of action for professional negligence. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

In the fifth cause of action, Jaworski alleges that, as a patient at Cottage Hospital in 2018 and 2019, defendants owed him a duty of care to take all necessary steps and implement all necessary procedures and practices to ensure the confidentiality of Jaworski‘s medical records and information, and to provide all necessary diagnoses and treatments. (TAC, ¶ 56.) Jaworski further alleges that defendants failed to meet the applicable standard of care for health care providers “and committed negligent acts and omissions in their provision of professional services” which caused damage and injury to Jaworski. (Id. at ¶ 57.)

In addition, defendants offer evidence showing that when asked to “set forth and describe in detail” facts upon which Jaworski bases the allegation of professional negligence during discovery, Jaworski effectively asserted the same contentions as those alleged in the TAC further discussed above. (Sep. Stmt., UMF No. 105 & evidence cited therein [Jaworski response to defendants’ special interrogatory no. 38].)

Giving the allegations of the TAC a reasonable interpretation and considering the content of Jaworski’s discovery responses offered by defendants, Jaworski’s claim is one of professional negligence. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192 (Central Pathology) [when injured party seeks damages “for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such”, then the action arises out of the provider’s professional negligence]; accord, Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 353-354 [also noting that tortious actions undertaken for a purpose other than the rendering of medical professional services would not constitute professional negligence].)

“ ‘ “[I]n any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.’ ” ’ [Citation.]” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 (Avivi).) Therefore, “[o]pinion testimony from a properly qualified witness is generally necessary to demonstrate the elements for medical malpractice claims….When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo, supra, 2 Cal.App.5th at p. 310.)

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Evid. Code, § 720, subd. (a).) In support of the motion, defendants submit the declaration of Jeffery Shapiro, M.D. (Dr. Shapiro). Dr. Shapiro is a physician licensed to practice medicine in the State of California and is certified in internal medicine by the American Board of Internal Medicine. (Shapiro Decl., ¶ 1.) Dr. Shapiro obtained his medical degree from University of Southern California School of Medicine, Los Angeles, in 1996 and received his medical license in the State of California in the same year. (Ibid.) Dr. Shapiro is a Senior Fellow in Hospital Medicine, and RPI/Lean Six Sigma Greenbelt Certified (Joint Commission Center for Transforming Healthcare). (Ibid.)

Dr. Shapiro completed his residency at Huntington Memorial Hospital in Pasadena, California in 1999. (Shapiro Decl., ¶ 1.) From 2002 to the present, Dr. Shapiro has worked as an Internal Medicine/Hospitalist for the Southern California Hospitalist Network in Anaheim, California. (Ibid.) In that position, Dr. Shapiro provides comprehensive inpatient medical care to a base of more than 75,000 patients in multiple “IPA’s”. (Ibid.) Dr. Shapiro also provides regular feedback to primary care physicians and patient families, coordinates care with case managers and sub-specialists on a daily basis, facilitates patient transfers and direct admissions, and provides emergency room “back-up” call and extensive night call coverage. (Ibid.)

Since 2005, Dr. Shapiro has worked as the Regional Medical Director for the Citrus Valley Region, Southern California Hospitalist Network in Anaheim, California. (Shapiro Decl., ¶ 1.) In this position, Dr. Shapiro’s duties include management and supervision of a team of hospitalists covering five hospitals and multiple major medical groups, physician recruitment, orientation, training, peer education, and motivation. (Ibid.) Dr. Shapiro works in collaboration with “IPA” medical directors, case managers and sub-specialists for overall quality improvement, bed-day management, and new business development. (Ibid.)

Dr. Shapiro states that he is “familiar with and qualified to address the standard of care applicable to doctors and hospital staff under the circumstances of this case based upon [his] education, training and more than twenty-six years of experience specializing in internal medicine and hospital practice.” (Shapiro Decl., ¶ 3.) The court finds that Dr. Shapiro is qualified to provide expert opinion testimony on the subject to which Dr. Shapiro’s testimony relates. (Avivi, supra, 159 Cal.App.4th at p. 467.)

As a basis for the opinions set forth in his declaration, Dr. Shapiro reviewed the TAC, the deposition testimony of Lewis, the deposition testimony of Lewis’ brother Paul Jaworski, plaintiffs’ verified responses to Cottage Hospital’s set one special interrogatories and set one production of documents, and the medical records of Jaworski from Cottage Hospital documenting and describing Jaworski’s three and a half months of hospitalization. (Shapiro Decl., ¶ 4.) Based on his review of these materials, Dr. Shapiro provides a description of the care and treatment provided to Jaworski. (Id. at ¶¶ 4-13.) According to Dr. Shapiro, the medical records show that the care and treatment provided to Jaworski includes the following:

Jaworski had brain cancer in 2010, resulting in the removal of a portion of his brain. (Shapiro Decl., ¶ 6.) Radiation treatments left Jaworski mostly blind in one eye and mostly deaf. (Ibid.) The records also set forth a long history of either bi-polar disorder or schizophrenia. (Ibid.)

On October 12, 2018, an outpatient MRI was taken of Jaworski’s brain (the October 2018 MRI) was taken at Cottage Hospital. (Shapiro Decl., ¶ 7.) Jaworski was also examined by an oncologist who reviewed the October 2018 MRI and compared it to MRIs taken in July 2017 and September 2018. (Shapiro Decl., ¶ 7.) The oncologist concluded that the October 2018 MRI revealed “an interval decrease in the size of the lesion in the posterior left temporal lobe” and that Jaworski was “clinically quite stable and did not need to be hospitalized.”(Ibid.) The oncologist recommended that Jaworski make an appointment with the neurology department for a “neurologic evaluation and neurosurgical evaluation.” (Ibid.)

Jaworski was brought to the ED by Lewis on January 2, 2019, after Lewis found Jaworski attempting to stab himself. (Shapiro Decl., ¶ 5.) In the ED, Jaworski was stabilized and his past history reviewed. (Shapiro Decl., ¶ 8.) Jaworski underwent “extensive testing, an MRI of his brain, treatment of his wounds, and examinations by medical doctors, a psychiatrist and a neurologist.” (Ibid.) The MRI of Jaworski’s brain was compared with the October 2018 MRI and showed no growth of prior lesions or new tumors. (Ibid.) It was determined that Jaworski’s brain cancer had not returned, and Jaworski was cleared by neurology to discharge home on January 3, 2019. (Ibid.) At this time, Lewis stated that he would no longer care for Jaworski and requested placement in a facility. (Ibid.)

After Jaworski was deemed medically stable for placement on January 4, 2019, Cottage Hospital began looking for a skilled nursing home or other appropriate facility. (Shapiro Decl., ¶ 9.) On January 5· and 6, 2019, MRIs were performed, were negative for any new tumors, and showed no lesions suggesting an organic cause of Jaworski’s behavioral and psychiatric symptoms. (Ibid.) Despite being medically stable, Cottage Hospital was having difficulty finding placement for Jaworski due to his physical disabilities and psychiatric history. (Ibid.)

On January 7, 2019, Jaworski fell walking in the hallway. (Shapiro Decl., ¶ 10.) X-rays of Jaworski’s knee and a CT scan of Jaworski’s head were taken confirming that Jaworski was uninjured and still medically cleared for placement. (Ibid.)

On January 29, 2019, Alvarado was assigned to help place Jaworski. (Shapiro Decl., ¶ 11.) Alvarado worked on finding Jaworski, who was deemed sufficiently independent to be placed in a supervised room and board care facility, a safe and appropriate care facility that would accept his health insurance. (Ibid.) Alvarado was unable to secure a facility to transfer Jaworski within Santa Barbara County. (Ibid.) In April 2019, Alvarado was able to place Jaworski in the facility, which is a congregate living facility with a nurse case manager. (Ibid.) Jaworski was transferred to the facility on April 17, 2019. (Ibid.)

After full review of medical notes and records, the doctors at Cottage Hospital deemed Jaworski mentally competent make his own medical decisions. (Shapiro Decl., ¶ 12.) The records state that Jaworski did not want to be sent to a locked facility. (Ibid.) Alvarado’s notes show that on February 22, 2019, she observed Lewis in the room with Jaworski and that Jaworski was clearly agitated when Lewis was present. (Ibid.) Lewis told Alvarado that he adamantly felt that Jaworski should be in a locked facility because Lewis felt like Jaworski would be a danger to himself and others. (Ibid.) Alvarado noted Lewis’ concerns and explained that Cottage Hospital was in a difficult situation because Jaworski would not consent to go a locked facility and as there was no conservator, Cottage Hospital was unable to force Jaworski to go to a locked facility. (Ibid.) Alvarado provided Lewis with the phone number to a public guardian so that Lewis could consult regarding petitioning the court to order a conservatorship for Jaworski. (Ibid.)

On April 17, 2019, Tatyana Bebko, RN noted that Jaworski requested that “his brother” not be notified or told where he is going and that Jaworski appeared very scared stating that he feared that his brother might have arranged for harm to be done to him. (Shapiro Decl., ¶ 13.)

Dr. Shapiro further asserts that because Jaworski was deemed medically and mentally competent to make his own medical decisions, the AHD would not have been effective. (Shapiro Decl., ¶ 19.) Because Jaworski expressly requested Cottage Hospital not to inform Lewis where he was being transferred, the staff at Cottage Hospital complied with a duty to follow Jaworski’s wishes. (Ibid.)

The information and evidence offered by Dr. Shapiro and further discussed above also appears in the moving separate statement at paragraphs 109 through 115 and 117.

Based upon Dr. Shapiro’s education, training, and experience, and his review of the materials provided in this case, which includes the information described above, it is Dr. Shapiro’s professional opinion that the medical care and treatment provided by the doctors and staff at Cottage Hospital to Jaworski did not cause or substantially contribute to any injuries. (Sep. Stmt., UMF No. 119 [Shapiro Decl., ¶¶ 20, 21].) The specific bases for Dr. Shapiro’s opinion includes that Jaworski’s condition improved during his hospitalization and his psychiatric condition was addressed with appropriate medications administered. (Id. at UMF No. 118 [Shapiro Decl., ¶ 20(a)].) Dr. Shapiro also asserts that the transfer of Jaworski to the facility was appropriate, within the standard of care, and did not cause injury to Jaworski. (Id. at UMF No. 116 [Shapiro Decl., ¶ 20(b)].) As a basis for this opinion, Dr. Shapiro states that the facility was vetted and approved by Cottage Health as well as the payer, and that Cottage Health went “well beyond what is expected of an acute-care hospital by providing medical care to [] Jaworski for over three months.” (Ibid.)

Considering the information and opinions contained in the Shapiro declaration, defendants have made a prima facie showing that plaintiffs cannot establish the breach of duty or causation elements with respect to Jaworski’s claim that defendants failed to meet the applicable standard of care in providing necessary diagnoses and treatments.

Notwithstanding that defendants have met their burden with respect to the whether plaintiffs can establish a claim for professional negligence with respect to the diagnoses and treatments furnished to Jaworski, the theory of liability alleged in the fifth cause of action also includes a claim that defendants breached a duty of care with respect to ensuring the confidentiality of Jaworski’s medical records and information. There is no information or evidence to demonstrate that the claims alleged in the fifth cause of action are separate and distinct. Rather, available information demonstrates that the cause of action for professional negligence is based on an interrelated set of circumstances as alleged in the TAC. Therefore, as the motion fails to address each theory of liability alleged in the fifth cause of action, the motion fails to completely dispose of the claim for professional negligence and must be denied. (See Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97-98 [also noting that the purpose of the enactment of the summary adjudication statute was to “stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area”].)

In addition, defendants have phrased issue no. 5 as “[Jaworski’s] Cause of Action for Professional Negligence is Without Merit.” (Sep. Stmt. at p. 27.) “An issue should be phrased in language appropriate for adoption by the court if the motion is granted. [Citation.] If nothing else, this avoids debate about whether the language of the order properly reflects the issue actually adjudicated. [¶] More importantly, the issue should be clear and unambiguous and its scope should be apparent.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 333, superseded by statute on another ground.)

As defendants have failed to address all theories of liability alleged in the fifth cause of action, the court cannot adopt the language offered by defendants under issue no. 5. Moreover, and for the same reasons discussed above, issue no. 5 is not supported by any evidence demonstrating that plaintiffs cannot establish a claim for professional negligence based on a purported failure to maintain the confidentiality of Jaworski’s medical records and information. (See United Community, supra, 231 Cal.App.3d at p. 337 [discussing the “due process aspect” of a moving party’s separate statement]

Furthermore, the notice of the present motion states that defendants seek summary adjudication of the entirety of the sixth cause of action. (Notice at p. 2.) A notice of a motion, other than for a new trial, must state “the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010, see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].) In addition, the motion must “state the basis for the motion and the relief sought[.]” (Cal. Rules of Court, rule 3.1112()d)(3).)  “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)

The notice of the present motion does not state that defendants seek summary adjudication of only part of the fifth cause of action alleged in the TAC nor does the notice identify as grounds for the motion a contention that the fifth cause of action includes separate and distinct claims for professional negligence based on separate duties. (See, e.g., Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.) In addition, though under appropriate circumstances a court may summarily adjudicate a legal issue that does not completely dispose of a cause of action, the parties here have not demonstrated compliance with Code of Civil Procedure section 437c, subdivision (t), prior to filing the present motion.

Though defendants have, for present purposes, met their burden to demonstrate that the breach of duty and causation elements of Jaworski’s fifth cause of action for professional negligence cannot be established with respect to Jaworski’s claim that defendants breached the duty of care in providing necessary diagnoses and treatments sufficient to shift the burden to Jaworski to present conflicting expert evidence, for all reasons discussed above, the summary judgment motion fails to dispose of the entirety of Jaworski’s claim for professional negligence. For this reason, the court will deny the motion for summary adjudication of the fifth cause of action alleged in the TAC.

Issue No. 6:

With respect to issue no. 6, defendants seek summary adjudication of the sixth cause of action for unfair competition in which Jaworski alleges that defendants intentionally refuse to offer healthcare to insolvent patients on state provided health insurance programs, such as Jaworski, and that defendants improperly transfer these insolvent patients to other health care facilities to avoid financial costs. (TAC, ¶¶ 65-68.)

To support adjudication of this issue, defendants submit the declaration of Mark Bookspan, M.D., who is the director of Cottage Hospital’s residency program and who was Jaworski’s primary care physician during Jaworski’s admission to Cottage Hospital. (Bookspan Decl., ¶¶ 1, 2.) Dr. Bookspan asserts that, based on his experience, “patients admitted to [Cottage Hospital] are provided care and services regardless of their means to pay or the type of insurance that they have”, that Dr. Bookspan and his staff order the same tests and perform the same examinations on patients regardless of insurance status, and that the fact that Jaworski was insured through CenCal had no bearing upon the services that were provided to him. (Sep. Stmt., UMF No. 123 & evidence cited therein.)

Defendants further contend that the deposition testimony of Lewis demonstrates that plaintiffs have produced no evidence showing that defendants engaged in any deceptive business practices.

“ ‘The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. [Citations.] The object of the proceeding is to discover proof.” (Colvig v. KSFO (1964) 224 Cal.App.2d 357, 363 (Colvig).) Therefore, declarations submitted in support of a motion for summary judgment must include evidentiary facts sufficient to entitle the moving party to judgment and “ ‘shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.’ ”(Id. at 363; Code Civ. Proc., § 437c, subd. (d).) However, “statements of ultimate facts, conclusions of law, conclusions of fact, argumentative matter and statements based on hearsay” are insufficient to sustain a summary judgment. (Colvig, supra, 224 Cal.App.2d at p. 365; accord, West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 363 [statements of undisputed facts must have evidentiary support].)

Dr. Bookspan offers only conclusory and speculative statements based on his personal practices and observations with treating patients, and conclusory general information regarding Cottage Hospital’s unspecified policies. Absent a sufficient foundation for the statements contained in the Bookspan declaration, the court can only speculate that all persons employed at Cottage Hospital provide care and services regardless of the patient’s insurance or ability to pay, and as to the existence, nature, and content of the unspecified “policy” or “requirement” referenced in the Bookspan declaration. (See Aguilar, supra, 25 Cal.4th at p. 864 “[s]peculation…is not evidence].) Furthermore, apart from declaring that he is a director of the residency program and an attending physician, there is no evidence demonstrating that Dr. Bookspan has any particular knowledge about the matters stated in the Bookspan declaration with respect to policies or requirements sufficient to enable him to render the conclusory opinions offered in the Bookspan declaration. For these reasons the information presented in the Bookspan declaration is insufficient to demonstrate that Jaworski cannot establish a cause of action for unfair business practices under Business and Professions Code section 17200, and that defendants are entitled to judgment as a matter of law.

In addition, defendants must also show that Jaworski cannot reasonably obtain necessary evidence to support the sixth cause of action alleged in the TAC. It is insufficient for defendants to “simply point out” that Jaworski does not possess necessary evidence to establish one or more elements of the cause of action as defendants have done here. (Aguilar, supra, 25 Cal.4th at p. 854-855.)

For all reasons further discussed above, defendants have failed to demonstrate that Jaworski cannot establish or reasonably obtain evidence necessary to prevail on his claim under Business and Professions Code section 17200, et seq. Therefore, the court will deny the summary judgment motion to the extent it seeks adjudication of the sixth cause of action alleged in the TAC.

Evidentiary Objections:

The court rules only on objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

In support of their reply to plaintiffs’ opposition, defendants submit 12 objections to evidence submitted by plaintiffs.

The California Rules of Court requires that written objections to evidence “[q]uote or set forth the objectionable statement or material[.]” (Cal. Rules of Court, rule 3.1354(b)(3).) Defendants’ objection nos. 2 through 8, 11, and 12 fail to identify which specific statements among multiple statements, including entire paragraphs from the Lewis declaration, constitute objectionable material. Defendants’ failure to identify the specific statements that are objectionable forces the court to guess whether defendants object to the cited material in whole or in part. As defendants have failed to substantially comply with the formatting rules set forth in California Rules of Court, rule 3.1354(b)(3), the court will disregard objection nos. 2 through 8, 11, and 12. (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial court may decline ruling on improperly formatted objections].)

Defendants also submit objections to the entirety of the declaration of Garry M. Tetalman submitted in support of plaintiffs’ opposition to the summary judgment motion on the grounds that the declaration constitutes improper argument. The same analysis applies. As defendants fail to quote the objectional material or statements contained within the Tetalman declaration, the court declines ruling on defendants’ objections to the entirety of that declaration.

Regarding defendants’ objection nos. 1, 9, and 10, the evidence cited in these objections is not material to the court’s disposition of the motion. Therefore, the court also declines to rule on these objections.

Defendants also object to additional material that appears at page 259, line 21, through page 267, line 5, of plaintiffs’ response separate statement. As the burden did not shift to plaintiffs, the evidence contained within this portion of the response separate statement is not material to the disposition of the summary judgment motion.

Though the burden did not shift to plaintiffs, the court notes that an opposing party’s responses to a moving separate statement “must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.)

Though plaintiffs have established that there exist triable issues of fact as further discussed above, plaintiffs’ nearly 300-page responsive separate statement in large part fails to plainly and concisely set forth material facts that plaintiffs contend are undisputed. Rather than directly addressing the facts stated in the moving separate statement, plaintiffs attempt to create disputes where none exist by offering evidence regarding matters not set forth in the separate statement.

For example, defendants’ separate statement includes paragraph 7 which states that Jaworski was “cleared to go home” on January 3, 2019. Though plaintiffs dispute this fact, their response does not in fact dispute that Jaworski was cleared for discharge by Cottage Hospital, whether to home or to another location. Rather, plaintiffs effectively dispute whether or not Jaworski should have been cleared to go home based on his medical condition. Plaintiffs also offer facts regarding Jaworski’s MRI results. If this information constitutes a material fact, it should have been listed under plaintiffs’ additional facts with supporting evidence.

By way of further example, defendants’ separate statement includes paragraph 14 which states that from the time Jaworski was admitted to Cottage Hospital on January 2, 2019, until his discharge on April 17, 2019, Jaworski received medical treatment from the physicians identified in that paragraph. Though plaintiffs dispute this fact, the response does not in fact dispute that Jaworski was treated by these physicians at Cottage Hospital. Instead, plaintiffs offer which relates to Jaworski’s transfer and the decision to place Jaworski out of Santa Barbara, among other matters that should have been listed as additional facts. Plaintiffs’ response to separate statement paragraph 14 should have been “undisputed”.

The problems described above appear throughout plaintiffs’ responses to the moving separate statement. For these reasons, plaintiffs’ response separate statement in significant part fails to comply with Code of Civil Procedure section 437c, subdivision (b)(1), and California Rules of Court, rule 3.1350(d)(2). Counsel is reminded of their obligation to comply with procedural requirements and court rules.

(2) The Motion To Seal

In the motion to seal, defendants request an order sealing the medical records conditionally lodged under seal as Exhibit C in support of the motion for summary judgment.

California Rules of Court, rules 2.550 and 2.551, apply to “records sealed or proposed to be sealed by court order.” (Cal. Rules of Court, rule 2.550(a)(1). ) (Note: Undesignated rule references herein shall be to the California Rules of Court unless otherwise specified.) A court may order a record be filed under seal upon an express factual finding establishing an “overriding interest that overcomes the right of public access to the record”, that “the overriding interest supports sealing the records”, that “a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed”, that “the proposed sealing is narrowly tailored”, and that “no less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d)(1)-(5); Sander v. State Bar of California (2013) 58 Cal.4th 300, 319, fn. 7.)

Among other things, “[a] party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551 (b)(1).) The moving party bears the burden of presenting information sufficient to identify the nature of the harm threatened by disclosure of the record at issue. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

Defendants assert that the medical records appearing in Exhibit C and conditionally lodged under seal include sensitive and confidential medical, psychiatric, and psychological information and records pertaining to the medical treatment, evaluation, and diagnosis of Jaworski. Defendants further assert that the medical records are also subject to statutory privacy regulations under the Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.) (HIPAA) and its California counterpart, Civil Code section 56 et seq. (the Confidentiality of Medical Information Act or CIMA), which prohibits disclosure of medical information without written authorization. (See Civ. Code, § 56 et seq.) Defendants also contend that redacting Jaworski’s name, birth date, or other identifying information from the medical records would not be effective because the public could infer from the remaining information that the redacted records belong to Jaworski.

“ ‘Privacy’ is not an insignificant interest—it is described in our state Constitution as one of our ‘inalienable rights.’ [Citation.]” (People v. Ramirez (1997) 55 Cal.App.4th 47, 56.) A patients’ medical information is generally considered confidential and private, and the disclosure of that information by health care providers is regulated. (See Vigil v. Muir Medical Group IPA, Inc. (2022) 84 Cal.App.5th 197, 208 [general discussion of the right to privacy in personal and sensitive medical information].) Accordingly, defendants have demonstrated that there exists an overriding interest in protecting Jaworski’s privacy with respect to Jaworski’s confidential and personal medical information and records. The court further finds that the overriding interest in preserving the confidentiality of Jaworski’s private and sensitive medical information appearing in the medical records lodged as Exhibit C to the summary judgment motion supports sealing those records.

In addition, a substantial probability exists that the overriding interest further discussed above will be irreparably prejudiced if the public has access to Jaworski’s medical records appearing in Exhibit C. Accordingly, the overriding interest overcomes the public’s right to access the medical records.

The court has reviewed the medical records submitted by defendants as Exhibit C in support of the summary judgment motion. Apart from sealing the records, there exists no less restrictive means to protect the confidentiality and privacy of Jaworski’s medical information. Accordingly, the proposed sealing is narrowly tailored. In addition, the court is not aware of any countervailing interests or prejudice to any party that would result should the court order the medical records lodged as Exhibit C sealed.

For all reasons discussed above, the court will grant the motion to seal. The medical records lodged under seal as Exhibit C in support of defendant’s summary judgment motion shall be placed under seal. No other court records or records relating to the case are to be sealed at this stage of the proceedings. Only the court, the parties named in this action and their counsel are authorized to inspect the sealed records.

Court records reflect that, for unknown reasons, on March 24, 2023, defendants filed in the public record defendants’ exhibits in support of the summary judgment motion (Defendants’ Exhibits). Defendants’ Exhibits include an unredacted version of Exhibit C which also discloses Jaworski’s social security number. By filing Exhibit C in the public record without redacting Jaworski’s social security number, defendants have violated California Rules of Court, rule 1.201(a)(1).)

In addition, and for unknown reasons, defendants have filed in the public record the declaration of J. Lynn Stokes-Pena (the Pena declaration) in support of the motion to seal to which a copy of the medical records is attached also as Exhibit C.

As the court will grant the motion to seal, and to ensure there exists an appropriate and proper record on which to determine the summary judgment motion and the motion to seal, the court will also order the clerk of the court to file under seal the entirety of Defendants’ Exhibits and the Pena declaration.

In addition, the court will order defendants to file, on or before March 11, 2024, a public redacted version of Defendants’ Exhibits redacting Exhibit C only, and a public redacted version of the Pena declaration also redacting Exhibit C to that declaration (i.e., the medical records) only.

Further, the court will set an order to show cause re compliance with the court’s orders herein on March 18, 2024, at 10:00 a.m. in this Department. Defendants’ counsel shall appear at the order to show cause on March 18, 2024, and demonstrate compliance with the court’s orders, or show cause for any noncompliance with the court’s orders. To the extent defendants have complied with the court’s orders, no appearances at the order to show cause will be necessary.