Tentative Ruling: Susanna Vadas vs Jeffrey R. Polito, MD
Case Number
23CV02584
Case Type
Hearing Date / Time
Fri, 08/07/2026 - 10:00
Nature of Proceedings
Motion for Summary Judgment
Tentative Ruling
For the reasons set forth herein, defendant Jeffrey R. Polito, M.D.’s motion for summary judgment is denied.
Background:
The first amended complaint (FAC), by plaintiff Susanna Vadas (Vadas) against defendant Jeffrey R. Polito, M.D. (Dr. Polito), filed on March 13, 2023, is the operative complaint. The FAC contains a single cause of action for medical negligence.
As alleged in the FAC:
Commencing in 2011, Vadas consulted with Dr. Polito for the purpose of examination, diagnosis, care, and treatment. (FAC, ¶ 9.) Commencing in 2019, Dr. Polito carelessly and negligently examined, diagnosed, treated, and cared for Vadas such that she was damaged. (Id. at ¶ 10.) The alleged negligence includes Dr. Polito breaching his duty of care following Vadas’ mammogram by failing to give her the option to follow the recommendations of the breast radiologist who recommended whole breast ultrasound in addition to the yearly mammogram, that Dr. Polito failed to inform Vadas regarding the risks and benefits of the extended use of estrogen, including alternative therapies as he was the one renewing her prescription, Dr. Polito failed to get a complete history which includes Vadas’ Jewish background which would indicate an increased chance of having breast cancer, Dr. Polito missed the fact that Vadas had dense breast tissue, and Dr. Polito failed to refer Vadas to a gynecologist. (Ibid.) As a result, Vadas was diagnosed with breast cancer in January 2022, and discovered Dr. Polito’s negligence in May 2022, when Vadas received her medical records. (Ibid.)
On March 14, 2024, Dr. Polito answered the FAC with a general denial and 23 affirmative defenses.
Vadas passed away on September 20, 2024. (Szell Decl., ¶ 3 & Exh. B.)
Szell was appointed administrator of Vadas’ estate on July 23, 2025.
On March 27, 2026, Szell was substituted into the case as successor in interest to decedent Vadas.
Dr. Polito now moves for summary judgment arguing that Vadas was not under his care in the two years preceding, and up to, her breast cancer diagnosis, and that at all times he complied with the standard of care.
Szell opposes the motion.
Analysis:
Standard on Summary Judgment
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, subd. (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, subd. (c).)
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable 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, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)
“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown 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. Once the defendant . . . has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
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.) 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 p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)
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.)
“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)
Dr. Polito’s separate statement somewhat defeats the purpose of separate statements. Rather than state a single “fact,” nearly all of the numbered items present several. For example, undisputed fact No. 1 states: “The decedent, Susanna Vadas, first established care with internist, Dr. Polito, in 2010 and remained under his care until July of 2019 when she switched primary care physicians for unknown reasons. Throughout her years under his care, she consulted Dr. Polito for various medical conditions such as hypertension, diabetes, low back pain, and irritable bowel syndrome. From 2010 through 2019, Dr. Polito consistently ordered Ms. Vadas’ annual routine mammograms to screen for breast cancer.” The court counts three separate “facts.” This makes it difficult to determine which facts, if any, are reasonably disputed, resulting in an inordinate amount of time sifting through several hundreds of pages of exhibits to determine the truth of each alleged fact. In any case, the facts mostly consist of background information, with the relevant ones pertaining to the standard of care.
Standard of Care
“ ‘ “[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.” ’ ” [Citations.]” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310 (Borrayo).)
In support of the motion, Dr. Polito provides the declarations of Ryan M. Klien, M.D. and Edwin L. Jacobs, M.D.
Dr. Klein is Board Certified in Internal Medicine with subspecialities in Pulmonary Medicine and Critical Care Medicine. He appears to the court to be well qualified and is capable of rendering credible expert opinion.
Dr. Klein reviewed Vadas’ medical records and concludes:
“Based upon my education, training, experience, and my review of the pertinent records in this case, it is my professional opinion that Dr. Polito met the standard of care with respect to the care and treatment he provided to the decedent, Susanna Vadas, as her primary care physician. It is my further opinion, based upon my education, training, experience, and my review of the pertinent records in this case, that nothing Dr. Polito did or did not do caused or contributed to Ms. Vadas’ injuries.” (Dr. Klein decl., ¶ 15.)
“Between the years 2010 and 2019, while Ms. Vadas was under Dr. Polito’s care, Dr. Polito met the standard of care by consistently ordering the decedent annual mammograms to screen for breast cancer. Any female patient above the age of 35 should be annually screened for breast cancer as the risk of cancer increases after that age. Seeing as Ms. Vadas was in her 70s-80s while under Dr. Polito’s care, he appropriately screened her for breast cancer yearly.” (Dr. Klein decl., ¶ 16.)
Dr. Klein also provides his opinion of what the standard of care does not require.
Dr. Jacobs is Board certified in Internal Medicine, Medical Oncology, and Hematology, and also appears to the court to be well qualified and is capable of rendering credible expert opinion.
Dr. Jacobs does not directly state that Dr. Polito met the standard of care. However, that opinion can be implied. For example, Dr. Jacobs declares:
“Based upon my education, training, experience, and my review of the pertinent records in this case, it is my professional opinion that nothing Dr. Polito did or did not do caused or contributed to Ms. Vadas’ injuries.” (Dr. Jacobs decl., ¶ 14.)
“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. [Citation.]” (Borrayo, supra, 2 Cal.App.5th at p. 310.)
Conversely, if a plaintiff provides an admissible expert declaration stating that the defendant’s conduct fell below the standard of care, summary judgment is precluded.
“[W]hen considering the declarations of the parties’ experts, we liberally construe the declarations for the plaintiff’s experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. [Citation.]” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126.
In opposition to the motion, plaintiff provides the declaration of James J. Stark, M.D. Dr. Stark is Board certified in Internal Medicine and Medical Oncology. He, as are Dr. Polito’s experts, is well qualified to render expert opinions.
Dr. Stark reviewed Vadas’ medical records and concludes:
“It is my professional opinion that Dr. Polito’s care fell below the community standard of practice. The Defendant failed to act as a competent gatekeeper, failed to perform a differential diagnosis, and failed to initiate the shared decision-making required for a geriatric patient. These omissions were a substantial factor in the delay of the diagnosis of the patient’s breast malignancy.” (Dr. Stark decl., ¶ 10.)
As noted above, the court may not weigh the evidence when ruling on a motion for summary judgment. There is clearly a triable issue regarding whether Dr. Polito met the applicable standard of care. As such, the motion for summary judgment must be denied.
Evidentiary Objections
Both plaintiff’s and Dr. Polito’s objections to the evidence of the other are overruled.