Susana Vadas v. Brent J. Kovacs, MD

Case Number

23CV02583

Case Type

Hearing Date / Time

Wed, 07/23/2025 - 10:00

Nature of Proceedings

Defendants’ Motion for Summary Judgment

Tentative Ruling

For Plaintiff Susana Vadas: Self Represented through her Guardian ad Litem Erika E. Szell

For Defendant Brent J. Kovacs, MD: James C. Schaeffer, Dana Garber

                       

RULING

For the reasons set forth herein Defendant Brent J. Kovacs’ motion for summary judgment is granted. The Trial date of 9/3/25 and the MSC date of 8/8/25 are vacated.

Background

This action commenced on June 15, 2023, by the filing of the complaint by Plaintiff Susana Vadas (“Vadas”) against Defendant Brent J. Kovacs, MD (“Dr. Kovacs”) for medical negligence.

As alleged in the complaint:

Beginning in 2012, Vadas consulted with Dr. Kovacs for the purpose of examination, diagnosis, care, and treatment. (Compl., ¶ 9.) In 2019, Dr. Kovacs performed a colonoscopy on Vadas, who was 80 years old at the time. (Id. at ¶ 10.) “The procedure was notable for a 5-millimeter precancerous polyp in the left colon. The Boston Bowel Prep Score was noted to be 5. Residual stool was noted in the Sigmoid colon with the Boston preparation score in this segment being 1. No repeat colonoscopy was recommended at this time due to Ms. Vadas’ age. On May 13, 2022, Ms. Vadas was admitted to Cottage Health Hospital with abdominal pain, nausea and vomiting. She was found to have a large bowel obstruction caused by a sigmoid mass. She underwent a total colectomy with end ileostomy. The mass was found to be colon cancer in May 2022. It is alleged that VADAS’ diagnosis of colon cancer was the result of a missed lesion on the colonoscopy performed by KOVACS in 2019 and the failure to repeat the colonoscopy in a timely manner. It has since spread and become metastatic.” (Ibid.)

On January 17, 2024, Dr. Kovacs answered the complaint with a general denial and 24 affirmative defenses.

On September 20, 2024, Vadas passed away and this action is continuing by way of guardian ad litem Erika E. Szell (“Szell”).

Dr. Kovacs now moves for summary judgment on the grounds that the complaint, containing only the cause of action for medical negligence, has no merit and fails to present any triable issues of material fact.

Szell opposes the motion, arguing that genuine disputes of material fact exist regarding Dr. Kovacs’ breaches of the standard of care.

Analysis

As an initial matter, the opposition was untimely. “An opposition to the motion shall be served and filed not less than 20 days preceding the noticed or continued date of hearing, unless the Court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (b)(2).) The opposition was due to be filed and served no later than July 3, 2025. Dr. Kovacs’ counsel represents that the opposition was not served until July 4, 2025, and thereafter, on July 8, 2025, Szell served an amended opposition, appendix of evidence, and separate statement. No opposition was filed with the Court until July 11, 2025.

Although the opposition was late filed and served, and the Court could exercise its discretion and disregard it, because the motion will be granted on substantive grounds, the Court will consider the opposition.

Summary Judgment Standard

A Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c(a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented 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(c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial Court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107; see also Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 10:270.) A triable issue of material fact exists 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 v. Atlantic Richfield, supra, 25 Cal.4th at 850.)

            Role of Pleadings

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a Defendant moving for summary judgment only requires that he or she negate Plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)

Here, as noted above, the complaint contains a single cause of action for medical negligence. Much of Vadas’ opposition relies on arguments that are not based on the stated cause of action but, rather, on other theories. Dr. Kovacs need only negate the medical negligence theory of liability because that is all that is included in the complaint.

            Separate Statement

“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “ ‘setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “Material facts’ “ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 874-875.)

“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial Court to hone in on the truly disputed facts.’ ” [Citation.]” (Beltran v. Hard Rock Hotel Licensing, Inc., supra, 97 Cal.App.5th at page 875.)

“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the 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., supra, 97 Cal.App.5th at page 875.)

“In opposing a Defendant’s motion for summary judgment, the Plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations,] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the Plaintiff to demonstrate the existence of disputed facts.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; disapproved on other grounds by Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42.)

Vadas’ separate statement in opposition is non-compliant. Most of the facts that Vadas disputes are not directly addressed. Rather, Vadas claims that the fact is “disputed” or “disputed in part” and then presents argument that does not address the specific facts set forth by Dr. Kovacs.

For example: Undisputed Material Fact (“UMF”) No. 2 reads: “In June of 2005 and August 2010, Dr. Kovacs performed colonoscopies of the Plaintiff which both revealed benign polyps.” Vadas replied: “Disputed in part. In June 2005, the colonoscopy revealed two sessile adenoma polyps, which are precancerous. Although benign at the time of removal, Dr. Kovacs used biopsy forceps instead of cold snare technique, which is more effective at removing entire polyps compared to forceps that remove polyps in pieces, suggesting adenomatous tissue was likely left behind.” Vadas’ response does not effectively dispute any part of UMF No. 2. Rather, she sets forth additional details, argument, and speculation. Her referenced evidence does not support her arguments. Further, Vadas does not specifically point to any admissible evidence that negates any of the UMFs.

The UMFs include facts, and admissible evidence, establishing that at all relevant times Dr. Kovacs met the standard of care with respect to the care and treatment provided to Vadas.

Medical Negligence

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Dr. Kovacs claims that Plaintiff cannot establish that Dr. Kovacs failed to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, and that she cannot show a proximate causal connection between any conduct and an injury.

“When a Defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the Plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)

Defendants support their motion with an expert declaration of Thomas B. Hargrave III, M.D. (“Dr. Hargrave”). In addition to declaration, a copy of Dr. Hargrave’s Curriculum Vitae (“CV”) is provided, as Exhibit A. Dr. Hargraves is Board Certified in Internal Medicine with a subspecialty in Gastroenterology. (Dr. Hargrave Decl., ¶ 1 & Exh. A.) Reviewing Dr. Hargrave’s declaration and CV, the Court is satisfied that Dr. Hargrave is well qualified to testify regarding the standard of care and whether Dr. Kovacs met that standard of care with respect to Plaintiff.

Dr. Hargrave reviewed extensive medical records and Plaintiff’s discovery responses in reaching his expert opinion. His opinions include that Dr. Kovacs met the standard of care with respect to Vadas throughout his treatment of her.

In opposition, Vadas’ guardian ad litem Szell provides a declaration. Szell is a nurse and has extensive experience as a nursing supervisor. (Szell Decl., ¶ 1.) Without minimizing Szell’s training and experience as a nurse, she is not a physician and has not demonstrated any particular expertise in Gastroenterology.

“An expert is qualified to testify where she possesses special skill or experience in her field “ ‘ “so that [her] testimony [is] likely to assist the jury in the search for the truth.” ’ ” [Citation.] Expert testimony is properly excluded as speculative where the expert lacks expertise over the subject matter of the litigation. [Citation.]” (San Antonio Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346, 351–352.)

Because Dr. Kovacs has provided a competent expert declaration that his conduct fell withing the community standard of care, it is required that Plaintiff come forward with conflicting expert evidence. She did not do so. As such, summary judgment will be granted in favor of Dr. Kovacs.