Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. CV050635
Siggins, J.
This suit was brought on behalf of a child who suffered massive brain damage from oxygen deprivation during a home birth against, among others, the estranged husband of Nan Koehler, the unlicensed midwife who delivered him. The court found that plaintiff failed to raise a triable issue of negligence as to Donald Solomon (defendant) and granted summary judgment in his favor. We affirm.
BACKGROUND
It is undisputed that Trystan Condon suffered profound brain injuries as a result of oxygen deprivation at birth. The question is whether he has shown facts supporting causes of action for negligence and premises liability against the husband of the midwife who delivered him, a retired obstetrician who stopped practicing with Koehler five years before Trystan’s birth and was not involved in his prenatal care or birth. Plaintiff proposes various theories to support liability, each of which is based on the common theme that defendant implicitly endorsed Nan Koehler’s skills and abilities and/or created the impression that he was part of her midwifery practice by failing to prevent her from running her practice on his property or failing to warn plaintiff’s parents that he was not involved in it.
Trystan is the plaintiff, acting through his father as guardian ad litem.
The following evidence was adduced on summary judgment. Even before Toni Sorenson became pregnant with Trystan, her only child, she knew she wanted to be assisted by a midwife rather than a physician for her delivery. She also wanted to give birth at home. She explained, “I wanted my son to be born in a warm environment, non-technical environment.” She did not explore any of the birthing options available at local hospitals because she believed her home would be preferable.
Koehler was first recommended to Sorenson and her husband Mark Condon by their chiropractor, Elena Vince. Dr. Vince told the couple that Koehler had delivered both of her children and one of a colleague’s; that Koehler had been delivering children for almost 30 years; and that she had delivered thousands of babies. Koehler was also recommended by Vince’s colleague Dr. Lars Sigl, whose girlfriend had given birth at home under Koehler’s care and “had a wonderful experience.” Sigl’s first wife gave birth in a hospital, and he told Sorenson that there was “a big difference” having the baby at home.
A couple of months into her pregnancy, in late August or early September, 1999, Sorenson obtained Koehler’s phone number from Vince and met her at the Sebastopol Farmers’ Market, where Koehler sold jam. They discussed Sorenson’s desire to use a midwife for her current pregnancy, her previous miscarriage and Vince’s recommendation. Sometime in September Sorenson returned to the Farmers’ Market with her husband. Condon asked Koehler whether defendant, whom they knew was a physician, could provide backup care for the delivery. Koehler told them that defendant would not be involved; she “just acted like it wasn’t necessary.”
At this meeting Koehler also told the couple that she was not a licensed midwife. Condon was concerned about this and raised the issue with Sorenson on several occasions. He told Sorenson he did not want her to deliver the baby at home with an unlicensed midwife, but Sorenson insisted that she was comfortable with Koehler. Condon never asked Sorenson to see a medical doctor or to use a licensed midwife or health care provider at the delivery “[b]ecause I don’t dictate to my wife”; nor did he consult with a physician about labor or home delivery before Trystan’s birth.
Sorenson and Condon were both treated by Dr. Vince about twice a week throughout Sorenson’s pregnancy. They had numerous conversations about using a midwife at a home delivery. Vince assured them Koehler was a “great midwife” with years of experience. She implied it was a “negative thing” to seek out a physician’s advice, and also provided literature warning her patients about people who died because of mistakes made by medical doctors. Sorenson also read a book about natural childbirth written and compiled by Koehler, in which Koehler wrote that she “learned a lot of obstetrics” from defendant and “helped two-thirds of the nearly 800 women seen in the last twelve years in the Solomon/Koehler practice, with [defendant] providing medical backup as required.” Condon testified that the further Sorenson’s pregnancy progressed, the more enthusiastic she became about using Koehler.
Sorenson testified that she knew defendant would not be involved in her care or delivery, and that she was responsible for finding a backup person in case of a complication or emergency, but neither she nor her husband made any efforts to do so because “[i]t was understood that really, [Koehler] could handle anything . . . we understood that we were in good hands.”
Condon’s initial concerns about using an unlicensed midwife were allayed by “Elena [Vince], Lars [Sigl], Julie, you know, we—my wife and I made the decision together and the decision was based on the information we had. The information was that Nan had been doing this for decades and had many thousands of births and really could do it better than anybody else. [¶] . . . [¶] We were told it would be better for her not to be licensed because she could do things that would be more beneficial” and “could handle anything that comes up.” Their decision, he testified, was based on other people’s positive experiences with Koehler, his own discussions with the midwife, and the fact that Sorenson was comfortable with her.
From 1976 until defendant retired in 1995, he and his wife worked together performing home deliveries. Koehler’s services were to provide prenatal education, preparation and labor coaching. Koehler and defendant separated in 1995 but continued to share the main residence on defendant’s property. Koehler had a separate entrance and they slept in different rooms so their contact was minimal. There were nine or 10 separate buildings on the property, one of which, a remodeled barn loft, was defendant’s medical office until he retired. Defendant knew that Koehler continued to practice midwifery after he closed his medical practice and ended their professional collaboration in 1995, but he did not know where she met with her clients and did not ask her. There was no sign on the property indicating that defendant was not responsible for Koehler’s patients.
Koehler later moved from the house to a cabin on the property.
Sorenson had one or two appointments with Koehler in October and November, 1999, at Sorenson’s home. In December Sorenson went to Koehler’s home instead. Defendant was leaving the house when Sorenson arrived at the front door and the two of them exchanged pleasantries. She testified that she went to this appointment alone. Other than this chance meeting, defendant had no further contact with the couple. He never acted as Sorenson’s physician, provided her with prenatal care or gave her medical advice. However, sometime in January 2000 Condon and Sorenson attended a childbirth class led by Koehler at her office at which they saw a video of defendant attending to the birth of one of his and Koehler’s children.
Condon’s declaration in opposition to summary judgment says that he was also there and that defendant “led us to Defendant Nan Koehler,” who took them to another building on the property.
Condon submitted his declaration opposing summary judgment four and a half years after his deposition was taken. In it he states: “It was my understanding the property at 13140 Frati Lane in Sebastopol where both my wife and I met with Defendant Nan Koehler was both the residence and offices of Defendant Nan Koehler and of her husband, Defendant Donald Soloman [sic], M.D. [¶] At the time of our meeting with Defendant Nan Koehler at the home Defendants shared I knew Defendant Donald Soloman [sic], M.D. to be a physician who specialized in obstetrics. [¶] It was clear to me, by his opening his house to us for the purpose of seeking midwife care from his wife that Defendant Dr. Soloman [sic] was both familiar with his wife’s work and supportive of that work. [¶] . . . [¶] My wife and I were reassured by the facts that Defendant Nan Koehler was living and working at the same address as her husband, an obstetric physician, and that the services she was providing were recognized and approved of by the Defendant Donald Solomon, M.D.”
Trystan was born on February 28, 2000, in his parents’ Petaluma home, after a long labor assisted by Koehler. Around 9:00 in the morning, after Sorenson had been pushing for around 18 hours, Koehler said “We have a problem. He needs to come out now.” The boy was born a few minutes later. He was a blue-gray color and was not breathing. Koehler administered mouth-to-mouth resuscitation and had an assistant bring two oxygen tanks from her car. One was empty; the other was almost empty and quickly depleted. Condon asked at least twice if he should call 911, but Koehler told him not to and sent him out to find more oxygen at a pharmacy or a hospital. Instead he went to a nearby fire station, where he explained the situation. Paramedics arrived at the house with oxygen a few minutes later and transported mother and child to the hospital. Trystan suffered massive, global brain damage caused by oxygen deprivation at the time of his birth.
Condon, as Trystan’s guardian ad litem, filed this negligence action against Koehler and defendant. The complaint charges that defendant failed to warn Trystan’s parents that Koehler was unlicensed; that he aided and abetted her in providing unlicensed midwife services; and that he negligently allowed Koehler to use his property to meet with expectant mothers for the purpose of providing midwife services and that “[c]onducting such functions, with a medical doctor’s presence while encouraging and condoning such services, constituted a dangerous use of the property.”
Defendant successfully moved for summary judgment. The trial court found plaintiff failed to raise a triable issue of fact as to negligent failure to warn because “ ‘[l]iability for nonfeasance is limited to situations in which there is a special relationship’ ” and the relationship of a landowner to a person coming onto the land did not suffice because Trystan’s injury did not occur on defendant’s premises.
The court rejected plaintiff’s claim that defendant was actively negligent because (1) Trystan’s parents knew Koehler was not licensed; (2) they knew defendant was not serving as a backup healthcare provider; (3) they never heard Koehler discuss the case with defendant; (4) defendant never gave Sorenson medical advice; and (5) there was no patient-physician relationship between defendant and Trystan’s parents. Under these circumstances, the court concluded that “[n]o reasonable trier of fact would find that reasonable people had been induced by [defendant] to believe that [Koehler’s] services were safe and legal and thus to continue seeing her. [Defendant] did not lead plaintiff’s parents to believe he would be assisting her. Under the circumstances, there is simply no basis to find that he made plaintiff’s position worse or increased the risk to plaintiff.”
The court also rejected plaintiff’s claim that defendant was liable for negligence per se based on Business and Professions Code section 2264, which proscribes aiding and abetting the unlicensed practice of medicine. It reasoned: “liability for aiding and abetting can only be imposed if the person ‘knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act. . . .’ [Citation.] The only ‘assistance or encouragement’ shown by plaintiff is that [defendant] allowed [Koehler] to engage in her practice on his property. This is not substantial assistance or encouragement since, if he had not allowed her to do so, she simply could have gone elsewhere (i.e. into clients’ homes.) In fact, it is undisputed here that [Koehler] performed the birth in plaintiff’s home.” (Italics added.)
Finally, the court rejected plaintiff’s premises liability claim because “[p]laintiff has not raised a triable issue as to whether [defendant] was negligent” and “[e]ven if he was negligent, his negligence was not a substantial factor in causing plaintiff’s harm.”
Plaintiff timely appealed.
DISCUSSION
I. Legal Standards
“ ‘To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff’s cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” [Citation.] [¶] ‘The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action.’ ” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)
“In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law.” (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) “While ‘[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact’ [citation], it is also true ‘[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.’ [Citation.] ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]’ ” (M.B. v. City of San Diego, supra, at p. 704.)
“We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 85.)
II. Analysis
The elements of a cause of action for negligence are duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [premises liability].) “A plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability. [Citation.] These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ibid.) This is such an undisputed case.
Plaintiff’s theory of causation is that defendant’s “presence on the premises where Ms. Koehler practiced midwifery and his knowledge of her activities lent legitimacy to her practice as a midwife and encouraged [Trystan’s parents] to continue seeing her”; that “[t]hey were reassured by the fact that Ms. Koehler was living and working at the same address . . . and that [defendant] recognized and approved her services”; and “[his] endorsement of Ms. Koehler’s practice and his allowing her to maintain a practice on the premises assured and encouraged plaintiff’s parents to use Ms. Koehler as a midwife.” The court rejected plaintiff’s theory that defendant could be liable because Koehler lived and worked on his property, and found as a matter of undisputed fact that defendant’s actions were not a substantial factor in bringing about Trystan’s injuries.
The evidence supports the court’s decision. Both parents knew from their early visits with Koehler that defendant would not be involved in Sorenson’s pregnancy or delivery and would not provide medical assistance. Sorenson was aware that she should make arrangements for medical expertise to backup her delivery, but she declined to do so. Sorenson and Condon had decided before they met defendant in passing that they wanted a home birth attended only by Koehler, even though they knew Koehler was unlicensed. Although both parents testified about their reasons for that decision—Sorenson’s wish for a home birth and her feeling of comfort with Koehler, other people’s recommendations of Koehler, Vince’s input—neither of them suggested that Koehler’s relationship to defendant or her living and working on his property was a consideration. The evidence, in short, shows no action or inaction by defendant that injured plaintiff or increased the risk attendant to his birth.
Condon’s declaration in opposition to the summary judgment does not create a material dispute of fact or change that conclusion. For the first time in his declaration, Condon said he and Sorenson considered the fact that defendant let Koehler live and practice on his property to be an endorsement and approval by defendant of her midwifery practice. The trial court implicitly, and properly, rejected these statements because they contradict both parents’ prior deposition testimony. “A party cannot create an issue of fact by a declaration which contradicts his prior pleadings. [Citation.] In determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party. [Citations.] ‘In reviewing motions for summary judgment, the courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive.’ ” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451; Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270.) Both parents testified in deposition that they decided to use Koehler for reasons that had nothing to do with defendant and that they knew defendant would not be involved. The declaration Condon executed only after defendant moved for summary judgment stands in stark contrast to that earlier testimony. We agree with the trial court’s assessment that no triable issue of material fact exists as to whether defendant’s actions were a substantial factor in bringing about plaintiff’s harm.
On these facts, moreover, no trier of fact could find reasonable reliance on defendant’s tangential, at best, connection to Koehler’s practice.
To the extent that plaintiff invites us to fashion a basis for defendant’s liability due to his status as a physician and the fact that he allowed Koehler to operate her unlicensed practice from his property, we decline the invitation. The “captain of the ship” rule may hold a doctor responsible for the negligence of other health care professionals who are under the doctor’s control and supervision during a surgical procedure. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 966-969.) The rule is that: “ ‘A physician generally is not liable for the negligence of hospital or other nurses, attendants, or interns, who are not his employees, particularly where he has no knowledge thereof or no connection therewith. . . . On the other hand, if the physician has the right to exercise control over the work to be done by the hospital employee and the manner of its performance, or an employee of a hospital is temporarily detached in whole or in part from the hospital’s general control so as to become the temporary servant of the physician he assists, the physician will be subject to liability for the employee’s negligence.” (Id. at p. 966.) The circumstances of this case present a far more tenuous basis for liability against the defendant than any reported application of the “captain of the ship” doctrine we have reviewed. There is no evidence that Koehler was subject to the defendant’s supervision or control in any respect. We decline to adopt any basis for liability premised upon the imposition of a duty on defendant to control Koehler’s practice because she conducted it from his property. That unlicensed midwifery is a misdemeanor does not change our conclusion. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 490-491.)
Plaintiff’s negligence per se theory also fails for a lack of causation. Plaintiff argues defendant violated Business and Professions Code section 2264, which declares the “aiding, or the abetting of any unlicensed person . . . to engage in the practice of medicine” to be unprofessional conduct, and that this violation supports a negligence per se claim. The trial court found as a matter of undisputed fact that defendant did not aid or abet Koehler by allowing her to live and operate her practice on his property. We need not revisit that finding because, even if we assume the existence of a disputed factual issue on this point, the violation of a safety statute can result in negligence liability only if, inter alia, “[t]he violation proximately caused death or injury to person or property.” (Evid. Code, § 669, subd. (a)(2).) As the evidence establishes that defendant’s actions had no causal relationship to plaintiff’s injury, plaintiff cannot establish liability under this theory.
Finally, Condon’s and Sorenson’s knowledge that Koehler was unlicensed, that it was up to them to obtain backup medical expertise, and that defendant would not be involved in Sorenson’s care also defeat plaintiff’s failure to warn theory. “Where one has actual knowledge of the existence of a dangerous condition, the question of warning becomes immaterial and can have no causal connection with the injury sustained.” (Buck v. Standard Oil Co. (1958) 157 Cal.App.2d 230, 236.) Condon and Sorenson proceeded to rely on Koehler for assistance with Trystan’s birth. They did so aware of the very things they say defendant should have warned them about.
In sum, the undisputed facts on summary judgment rule out any possibility that plaintiff’s tragic injuries were caused by anything defendant did or failed to do. Summary judgment was correctly granted.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.