Filed 6/16/22 Berlin v. The Spine Center etc. CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert S. Draper, Judge. Affirmed.

Steiner & Libo and Leonard Steiner for Plaintiff and Appellant.

Fraser, Watson & Croutch, Stephen C. Fraser, and Daniel K. Dik for Defendant and Respondent.

_______________________________________

INTRODUCTION

Plaintiff and appellant Michael Berlin, M.D.^[1] (plaintiff) sued J. Patrick Johnson, M.D., for professional negligence relating to a spinal surgery Dr. Johnson performed in 2014. The court granted Dr. Johnson’s motion for summary judgment on the professional negligence claim and entered judgment accordingly. A different panel of this division affirmed the judgment in favor of Dr. Johnson.

In the same action—the underlying action here—plaintiff named Dr. Johnson’s employer, defendant and respondent The Spine Center, A Medical Group, Inc. (Spine Center), as a Doe defendant and alleged Spine Center was also liable on the professional negligence claim. Following this court’s affirmance of the judgment in favor of Dr. Johnson, Spine Center moved for summary judgment, arguing the judgment in favor of Dr. Johnson conclusively resolved plaintiff’s professional negligence claim in Spine Center’s favor. The court agreed, granted Spine Center’s motion, and entered judgment accordingly. Finding no error, we affirm.

facts and procedural background

1. Judgment in Favor of Dr. Johnson

Dr. Johnson performed spinal surgery on plaintiff in April 2014. Plaintiff subsequently sued Dr. Johnson, Cedar-Sinai Medical Center,[2] and Does 1-100, stating a single cause of action for professional negligence.

In the operative complaint, plaintiff alleged the surgery performed by Dr. Johnson caused a variety of conditions including foot drop, leg paresthesia, abnormal gait, pain, inability to sleep, fatigue, stress, depression, and the inability to work. Plaintiff alleged these conditions “resulted from improper surgical technique used by Dr. Johnson, and that he had not been properly treated. More specifically, [plaintiff] discovered that the excessive bone removal, which had been performed, would thereafter preclude the preferred techniques for correcting the residual pathology, which had not been addressed in spite of identical pre-operative symptoms.” Plaintiff further alleged that Dr. Johnson breached his duty of care by failing to properly diagnose and treat plaintiff’s condition and by failing to operate on plaintiff in a competent manner.

The trial court granted Dr. Johnson’s motion for summary judgment, finding plaintiff failed to raise a triable issue of fact about whether Dr. Johnson had exercised reasonable care in performing the surgery and whether any aspect of the surgery caused plaintiff’s injury. A different panel of this division agreed with the trial court and affirmed the judgment in favor of Dr. Johnson. (Berlin v. Johnson (Oct. 16, 2019, B288003) [nonpub. opn.].)

2. The Claim Against Spine Center

In August 2017, plaintiff amended his complaint to include Spine Center as a Doe defendant. Spine Center answered the complaint and asserted a variety of affirmative defenses.[3]

3. Summary Judgment Proceedings

As noted, the operative complaint included a single cause of action for professional negligence. Spine Center moved for summary judgment based on the judgment in favor of Dr. Johnson. Spine Center noted that as a corporate entity, it acted only through its agents and employees and Dr. Johnson was the sole shareholder, board member, and employee of Spine Center. Accordingly, the only possible legal basis for Spine Center’s liability for professional negligence was vicarious liability for Dr. Johnson’s conduct. And as to that point, the court had already determined that Dr. Johnson was entitled to judgment as a matter of law on the professional negligence cause of action. Relying on principles of res judicata and law of the case, Spine Center argued it was also entitled to judgment as a matter of law.

Plaintiff opposed the motion, asserting that the surgery was performed by Dr. Johnson and Dr. Terrence T. Kim. Plaintiff argued that a dispute of material fact existed as to whether Dr. Kim was the ostensible agent of Dr. Johnson and Spine Center, such that Spine Center could be liable for any negligent conduct by Dr. Kim. (Plaintiff offered no evidence, however, of any negligent conduct by Dr. Kim.) Alternatively, plaintiff contended that Code of Civil Procedure[4] section 437c, subdivision (n)(2), required the denial of the motion and that neither res judicata nor the law of the case doctrine applied.[5]

The court granted Spine Center’s motion for summary judgment. The court agreed with plaintiff that res judicata principles did not apply because the judgment in favor of Dr. Johnson was entered in the present action, not a different, prior action. But, the court noted, the operative complaint in the present case based the negligence claim solely on Dr. Johnson’s conduct. The judgment in favor of Dr. Johnson established that he was not liable for professional negligence and therefore Spine Center, as Dr. Johnson’s employer, could not be vicariously liable for his negligence. Accordingly, the court found that Spine Center was entitled to judgment as a matter of law on plaintiff’s professional negligence claim.

4. Judgment and Appeal

The court entered judgment in favor of Spine Center on October 8, 2020. Plaintiff timely appeals.

DISCUSSION

Plaintiff contends the court erred by granting Spine Center’s motion for summary judgment and entering judgment thereupon. We disagree.

1. Scope and Standard of Review

The standard of review is well established. “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party “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.” (Id. at p. 850; § 437c, subd. (c).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, reversed on other grounds by Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

On appeal from a summary judgment, we review the record de novo and independently determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment. (Saelzler, at p. 768.) “In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue.’ ” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.) “We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Ibid.)

The appellant has the burden to show error, even if the appellant did not bear the burden in the trial court, and “ ‘to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.’ ” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) Further, “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited.[6] (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)

2. The court properly granted Spine Center’s motion for summary judgment.
   1. Plaintiff’s Complaint

As noted, we first consider the allegations of plaintiff’s complaint to determine the scope of the issues.

As the party with the ultimate burden at trial, a plaintiff would be required to establish professional negligence by proving “(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.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

Plaintiff alleged that Dr. Johnson performed his spinal surgery in an incompetent manner, thereby causing a variety of conditions including foot drop, leg paresthesia, abnormal gait, pain, inability to sleep, fatigue, stress, depression, and the inability to work. Plaintiff further alleged that Dr. Johnson breached his duty of care by failing to properly diagnose and treat plaintiff’s condition. These allegations sufficiently state a cause of action for professional negligence against Dr. Johnson.

The complaint makes no specific allegations concerning Spine Center. As we explain, however, the doctrine of respondeat superior provides a legal basis for its liability for Dr. Johnson’s conduct.

1. 2. Spine Center’s Evidence

As the moving party, Spine Center had the initial burden to show that plaintiff’s claim has no merit—that is, that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (§ 437c, subd. (o); see Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) “If a defendant’s moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Jones, at p. 945; Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965.)

In its motion for summary judgment, Spine Center correctly noted that, as a corporate entity, it does not engage in the practice of medicine. Instead, Spine Center acts only through its agents and employees. (See Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1420–1421 [explaining that medical corporations engage in the business of medicine and corporate employee licensed physicians engage in the practice of medicine].) Spine Center offered evidence—declarations by Dr. Johnson and Spine Center’s accountant—that Dr. Johnson is Spine Center’s sole shareholder, board member, and employee. Further, plaintiff’s complaint focuses exclusively on alleged medical malpractice by Dr. Johnson. No other physician is named as a defendant or mentioned in the complaint. According to Spine Center, then, the only legal basis for its liability for professional negligence could be vicarious liability for Dr. Johnson’s conduct. And as to that point, the court had already determined that Dr. Johnson was entitled to judgment as a matter of law on plaintiff’s professional negligence claim, thereby relieving Spine Center of any possible liability to plaintiff.

We agree with the court that Spine Center provided sufficient evidence to meet the initial burden of production on the professional negligence claim.

1. 3. Plaintiff’s Evidence

In opposition to Spine Center’s motion for summary judgment, plaintiff offered his own declaration in which he stated he consulted with both Dr. Johnson and Dr. Terrence T. Kim about his condition in 2013 and 2014, both physicians recommended and performed the spinal surgery on April 8, 2014, and he continued to consult with both physicians after the surgery. Plaintiff attested that Dr. Johnson said Dr. Kim worked for him and that Dr. Kim said the same thing in Dr. Johnson’s presence. Plaintiff said he reasonably believed that Dr. Kim was an employee of Dr. Johnson and that he was never advised by anyone that that was not the case. He also asked that the court take judicial notice of a printout of an undated webpage titled “The Spine Practice of J. Patrick Johnson, MD” which purportedly lists Dr. Kim as a practicing physician.[7]

1. 4. Analysis

In cases involving vicarious liability for medical malpractice, the liability of the physician’s employer (here, Spine Center) is wholly derived from the liability of the physician. That is, the employer cannot be held vicariously liable for medical malpractice unless the physician is liable in the first instance. (Lathrop v. HealthCare Partners Medical Group, supra, 114 Cal.App.4th at p. 1426 [“There can be no vicarious liability in a medical malpractice action without the underlying liability of the medical practitioner.”].) As noted, Dr. Johnson is the only physician identified in the complaint and the court determined, in response to Dr. Johnson’s motion for summary judgment, that Dr. Johnson was not liable to plaintiff on the claim for medical malpractice. Given that Spine Center’s only employee is Dr. Johnson, it seems plain, under well-settled precedent, that Spine Center is also not liable to plaintiff on that claim.

Plaintiff disagrees, contending there is a dispute of material fact as to whether Dr. Kim was the ostensible agent of Spine Center. “Where a patient seeks to hold a hospital [or, as here, a medical group that employs the physician] liable for the negligence of a physician, the doctrine of ostensible agency is now commonly expressed as having two elements: ‘(1) conduct by the hospital [or other employer] that would cause a reasonable person to believe that the physician was an agent of the hospital [or other employer], and (2) reliance on that apparent agency relationship by the plaintiff.’ (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.)” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038.) Plaintiff points to his declaration, in which he averred that both Dr. Kim and Dr. Johnson represented that Dr. Kim was employed by Dr. Johnson.

We see two insurmountable problems with plaintiff’s ostensible agency argument. First, in the operative complaint, plaintiff only alleged “that each defendant was the agent and employee of each other defendant, and in doing the things hereinafter alleged, acted within the scope and course of such agency and employment, and that each defendant has ratified and approved the acts of each other defendant.” (Italics added.) But Dr. Kim is not a defendant in this case. The only physician mentioned in the complaint is Dr. Johnson.

A plaintiff may not oppose summary judgment by raising a theory not pleaded. “ ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264–1265; see Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421 [‘A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.’]; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶¶ 10:51.1, 10:257, pp. 10-22, 10-118.)” (Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.) Plaintiff never sought, prior to the summary judgment hearing, to amend the operative complaint with his new factual assertion that Dr. Kim was an agent of Dr. Johnson or Spine Center. He was therefore precluded from raising the issue in opposition to Spine Center’s motion. (Ibid.)

Second, and in any event, plaintiff’s contention that Dr. Kim performed the surgery alongside Dr. Johnson—even if true—is insufficient to raise a triable issue of material fact regarding Spine Center’s liability for professional negligence. Plaintiff did not allege Dr. Kim was negligent nor did he make such an assertion in his declaration. In the absence of negligence by the agent, the issue of ostensible agency is immaterial.

Plaintiff also argues at length that section 437c, subdivision (n)(2), required the denial of Spine Center’s motion for summary judgment. The summary judgment statute (§ 437c) permits a trial court to summarily adjudicate “one or more causes of action.” (Id., subd. (f)(1).) At trial, a “cause of action” that has been summarily adjudicated shall be “deemed to be established,” and the case “shall proceed as to the cause or causes of action … remaining.” (Id., subd. (n)(1).) A grant of summary adjudication as to one or more causes of action does not bar other causes of action as to which summary adjudication was not requested or has been denied. (Id., subd. (n)(2).) And no one may comment on the grant or denial of a summary adjudication motion to a jury. (Id., subd. (n)(3).)

In Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, for example, the plaintiff brought multiple claims against his employer including wrongful employment termination and defamation. (Id. at p. 1129.) The court granted the employer’s motion for summary adjudication on most causes of action, but the wrongful employment termination claim was tried to a jury. (Ibid.) The court of appeal concluded that the trial court’s instruction to the jury, to the effect that certain facts pertaining to the defamation claim had already been established for purposes of the wrongful employment termination claim, was improper. (Id. at pp. 1129–1130.) Discussing recent legislative amendments to section 473c, subdivision (n), the court explained that summary adjudication of a cause of action removes a theory of liability from the case but has no bearing on how “ ‘the remaining causes of action’—the other theories of liability—are to be tried or proved. In short, the succession of amendments from 1990 to 1994 was intended ‘to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.’ [Citation.] At the same time, each cause of action, or substantive area, that is not summarily adjudicated is to stand on its own at trial.” (Id. at p. 1137.)

Section 437c, subdivision (n), is inapplicable here. That provision applies where some causes of action are summarily adjudicated and other causes of action are later tried. Here, plaintiff only asserted one cause of action—professional negligence. Plaintiff litigated the issue of Dr. Johnson’s negligence and lost. That the theory of liability against Spine Center is vicarious liability for Dr. Johnson’s negligence rather than direct liability for its own negligence is beside the point. As we have said, a claim for vicarious liability simply does not lie where the primary actor (here, Dr. Johnson) is not directly liable to the plaintiff.[8]

Finally, plaintiff claims the court erroneously denied his evidentiary objections directed to statements contained in the declarations of Dr. Johnson and Spine Center’s accountant. The objected-to statements, made in both declarations, are, “The Spine Center, A Medical Group, Inc. is a medical corporation, a legal entity which, itself, does not practice medicine, [and] does not participate in patient care or treatment, including surgeries.” Plaintiff urges that “the trial court committed legal error in overruling [these] objection[s] … for all of the reasons set forth in those objections.” The objections asserted in the trial court, which are quoted in the opening brief, read, “Plaintiff objects on the following grounds: lack of foundation and not within[ ] the declarant’s personal knowledge, Evidence Code §§ 403, 702[;] irrelevant and prejudicial, Evidence Code §§ 350, 352; inadmissible hearsay, Evidence Code § 1200; unfounded inadmissible lay opinion and legal conclusion, not evidentiary facts, Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49.”

As we have said, it is not enough to simply claim on appeal that the trial court erred. Parties must “present argument and authorities on each point to which error is asserted or else the issue is waived.” (Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655–656.) Plaintiff fails to meet this burden and has therefore forfeited the issue regarding his evidentiary objections. Moreover, and in any event, the court’s ruling was correct. (See Lathrop v. HealthCare Partners Medical Group, supra, 114 Cal.App.4th at pp. 1420–1421 [explaining that medical corporations engage in the business of medicine and corporate employee licensed physicians engage in the practice of medicine].)

DISPOSITION

The judgment is affirmed. The Spine Center, A Medical Group, Inc., shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KALRA, J.*

[1] Dr. Berlin describes himself as a “prominent glaucoma surgeon.” For our purposes, however, it is his role as the plaintiff in this medical malpractice action that is most relevant. Intending no disrespect, and to avoid confusion, we refer to Dr. Berlin simply as “plaintiff.”

[2] Plaintiff later dismissed Cedars-Sinai Medical Center from the case.

[3] Spine Center moved for summary judgment on statute of limitations grounds and the trial court granted that motion. A different panel of this division reversed that ruling. (Berlin v. Johnson et al. (Dec. 10, 2019, B291929) [nonpub. opn.].)

[4] Undesignated statutory references are to the Code of Civil Procedure.

[5] Section 437c, subdivision (n) states: “(n)(1) If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion that has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining. [¶] (2) In the trial of the action, the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the action shall not bar any cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication was either not sought or denied. [¶] (3) In the trial of an action, neither a party, a witness, nor the court shall comment to a jury upon the grant or denial of a motion for summary adjudication.”

[6] At oral argument, plaintiff’s counsel argued that the trial court should have allowed plaintiff to amend his complaint to include allegations regarding Dr. Kim rather than granting summary judgment in favor of Spine Center. Because this issue was not raised in plaintiff’s opening (or reply) brief, it is forfeited.

[7] No ruling on the request for judicial notice appears in the appellate record.

[8] In light of our conclusion, we do not reach the parties’ arguments concerning collateral estoppel and the law of the case.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.