Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County No. 01CC11177, Jonathan H. Cannon, Judge.
Balisok & Associates, Russell S. Balisok, Steven C. Wilheim; Law Office of Carol S. Jimenez and Carol S. Jimenez for Plaintiff and Appellant.
Ryan Datomi & Flores, Richard J. Ryan, Jeffrey T. Whitney and Dawn Cushman for Defendants and Respondents Bristol Park Health Resources, Inc. and Bristol Park Medical Management, LP.
Sedgwick, Detert, Moran & Arnold, David M. Humiston and Douglas J. Collodel for Defendant and Respondent Mary Hillebrand.
Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson, for California Medical Association, California Dental Association, and California Hospital Association as Amicus Curiae on behalf of Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
Sylvia Madigan sued numerous parties, including defendants Bristol Park Medical Management, LP (BPMM), Bristol Park Health Resources, Inc. (BPHR), and Mary Hillebrand, on behalf of her deceased husband, Daniel Madigan (Madigan). (Code Civ. Proc., § 377.20.) After Sylvia Madigan died in February 2004, the trial court recognized plaintiff Patricia Madigan-Escobedo, her daughter, as the successor in interest. The seventh amended complaint, the operative pleading in this action, contained several causes of action, including one for wrongful death, plus it sought remedies available under the Elder Abuse and Dependent Adult Civil Protection Act. (Welf. & Inst. Code, § 15600 et seq., § 15657.)
The court sustained demurrers without leave to amend to the wrongful death cause of action, struck the elder abuse allegations as to all defendants, and granted the above-named defendants’ motions for summary judgment as to the entire action. Plaintiff appeals from two judgments, one in favor of BPMM and BPHR, and a second for Hillebrand. We conclude the trial court properly granted the motions for summary judgment as to these defendants. Since the bases for imposing liability against BPMM, BPHR, and Hillebrand for wrongful death and elder abuse are the same as for the remaining causes of action, our affirmance of the summary judgment rulings renders the rulings on the wrongful death count and elder abuse allegations moot. Therefore, we shall affirm the judgment as to these defendants in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
As relevant to this appeal, the seventh amended complaint contained the following general allegations. Pacificare Health Systems, Inc. and Pacificare of California, doing business under the name Secure Horizons (collectively Pacificare), operate a health maintenance organization that, through a contract with the federal government, received monthly payments for each enrolled Medicare eligible member. In turn, Pacificare “contract[ed] with . . . ‘independent’ health care providers to provide required care, for a predetermined monthly payment per plan enrollee.”
Two independent health care providers that contracted with Pacificare were Bristol Park Medical Group, Inc. (Bristol Park) and Greater Newport Physicians Medical Group, Inc (GNP). The amended complaint’s references to Bristol Park included BPMM and BPHR.
In 1999, Madigan, then 65 years old, enrolled in Pacificare and selected a doctor employed by Bristol Park as his primary care physician. The next year he was diagnosed as suffering from multiple myeloma, a “usually fatal” cancer of the bone marrow. In January 2001, Madigan became a member of GNP. By then he was paralyzed. Hillebrand, an ambulatory case manager, performed utilization review services for GNP and had responsibility for reviewing home health services authorization requests submitted to it. She was not a health care provider and did not provide hands-on care to Madigan. Madigan died in June 2001.
The amended complaint alleged defendants knew or should have known Madigan “need[ed] . . . medical procedures to diagnose and assess” his condition, plus “medical care to prevent him from becoming a paraplegic” or “suffering excruciating and constant pain,” along with “constant monitoring and assessment and intervention,” including “home health care,” to “prevent . . . malnourish[ment],” “treat pressure sores and . . . prevent life-threatening side effects from medication [defendants] prescribed . . . .” Nonetheless, for financial reasons, defendants “failed to provide such care even when ordered to do so,” causing Madigan to “bec[ome a] paraplegic, suffer[] severe malnutrition, [and] develop[] severe pressure sores, . . . excruciating pain and distress.” In addition, the “serious and harmful effects” of “failure to monitor the amount of medications administered” resulted in “the development and rupturing of a ‘blood mass’ on his brain” “and his “untimely death.”
BPMM, BPHR, Bristol Park, and several of the physicians employed by the latter entity individually named as defendants in the amended complaint, moved for summary judgment on several grounds. The trial court granted the motion in its entirety as to BPMM and BPHR, concluding they “offered evidence [they] were not ‘contractually responsible to provide medical care to . . . Madigan,’” and “[p]laintiff has not produced sufficient evidence to raise a triable issue of fact in th[is] regard.”
Hillebrand filed a separate motion for summary judgment. The court granted it as well declaring, the “evidence offered by [Hillebrand] shows [she] was not authorized to deny coverage regarding Madigan and in fact never made such a decision,” and “[p]laintiff has not offered any competent evidence showing any causation between the alleged acts of Hillebrand and the injuries sustained by Madigan.”
In addition, the court denied all of plaintiff’s numerous evidentiary objections to the evidence presented by the moving parties.
DISCUSSION
1. The Standard of Review
Plaintiff argues a party opposing a motion for summary judgment need only show “there is substantial evidence that triable issues of fact exist . . . .” This is incorrect.
Summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. [Citation.]” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.)
“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party. [Citation.]” (LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776.) “‘All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]’ [Citation.]” (Ibid.)
Neither of the two cases plaintiff cites for its proposed standard of review (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704; Crail v. Blakely (1973) 8 Cal.3d 744) involved a motion for summary judgment. “‘“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.’” [Citations.]” (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278; see also Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 66.)
An order granting summary judgment is reviewed de novo (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408), but “the weight of authority holds that an appellate court reviews a court’s final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; see also Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)
2. BPMM’s and BPHR’s Motion
a. Background
BPMM and BPHR were sued along with Bristol Park and several physicians employed by it for failing to timely provide adequate care to Madigan while he was enrolled with Bristol Park. As to BPMM and BPHR, The Bristol Park summary judgment motion contended they could not be held liable because they “were not parties to any of the operative contracts . . . with physicians, HMOs[,] and other managed care entities,” and did not have any “involvement . . . in the medical care and treatment rendered to and approved for Mr. Madigan” and thus “did not owe any duty to [him].”
Dr. Andrew P. Siskind, a physician and president of Bristol Park, submitted a supporting declaration, stating he “ha[d] personal knowledge of the medical group’s general operations . . ., including its contractual arrangements with member physicians and managed care entities such as HMOs.” Siskind described Bristol Park as an entity “provid[ing] care through contracted family practitioners and internists,” and claimed that “[i]n 1999-2000, Bristol Park’s operative managed care contract was with St. Joseph Heritage Healthcare,” which “held contracts with various health plans, including Pacificare . . ., regarding the provision of medical services to . . . enrollees such as Mr. Madigan.” “Bristol Park . . . and Pacificare . . . were not parties to any managed care contract regarding the provision or arranging of medical care to Pacificare . . . enrollees,” and “Bristol Park Medical Group never received any payments from Pacificare . . . to provide or arrange medical services for . . . enrollees, including Mr. Madigan.”
Paragraph 16 of the declaration stated: “During the time that Mr. Madigan was a patient with Bristol Park . . ., [BPMM] and [BPHR] were not parties to any of the operative contracts,” and BPMM “was a dormant company” that “performed no services and its sole operation was to collect a promissory note from St. Joseph Heritage Healthcare. . . . [BPHR] served as a general partner of [BPMM]. [BPMM] and [BPHR] had no involvement in the provision and/or arranging of medical care to Mr. Madigan.”
In opposition to the motion, plaintiff submitted deposition testimony from Siskind and several other physicians employed by Bristol Park, plus copies of several agreements. In summary, this evidence reflects that, in the 1990’s, Bristol Park decided to split its business into two separate entities, the medical group and BPMM, a limited partnership providing management and administrative services to the medical group.
Bristol Park executed a professional services agreement with St. Jude Heritage Health Foundation (Foundation) in May 1996 whereby it agreed to provide primary care medical services to Foundation. At the same time, BPMM, through BPHR, its general partner, entered into an asset purchase agreement with Foundation. Under the latter agreement, Foundation acquired the bulk of BPMM’s assets, including its contractual obligations. One contract BPMM sold to Foundation was a medical and hospital group subscriber agreement between Pacificare and Bristol Park. In return for BPMM’s assets, Foundation agreed to “execute and deliver a promissory note in [BPMM’s] favor . . . .” Foundation then assumed Bristol Park’s financial management.
In mid-1998, Bristol Park signed an amended professional services agreement with Foundation, now renamed St. Jude Hospital Yorba Linda dba St. Joseph Heritage Healthcare, in conjunction with a new affiliation agreement. Under the amended professional services agreement, Foundation continued to provide administrative and financial management services and agreed to “establish in cooperation with [Bristol Park], policies, procedures and committees to support utilization monitoring.” The new affiliation agreement gave Foundation “exclusive authority to enter into all agreements . . . with health maintenance organizations . . . and any other participation agreements with third party payors . . . for the provision of [Bristol Park] professional services for individuals covered by such Plans.”
b. Analysis
Plaintiff contends she “presented substantial evidence that . . . there are issues of fact as to BPHR’s and BPMM’s involvement in the management and administration of Bristol Park . . . and its continued denial of needed care for Mr. Madigan . . . .” We disagree.
First, plaintiff conclusorily argues the trial court erred in denying its foundational objections to the evidence. But the record reflects Siskind, the medical group’s president, had sufficient personal knowledge of the events and legal relationships between the respective entities. (Evid. Code, § 702, subd. (a).) In addition, Siskind’s deposition testimony and the documentary evidence submitted by both parties corroborates the statements contained in his declaration.
Plaintiff contends “[t]he only ‘evidence’ offered by [the Bristol Park] defendants” in support of the claim BPMM and BPHR had no role in providing medical care to Madigan was paragraph 16 of Siskind’s declaration. But BPMM and BPHR’s brief cites to other evidence filed in support of their summary judgment motion.
More importantly, even assuming BPMM and BPHR failed to carry their initial burden on their summary judgment motion, plaintiff’s opposition cured this defect. Since “[t]he express statutory language requires that the summary judgment motion be granted if ‘all’ the papers show the moving party is entitled to prevail” (Villa v. McFerren (1995) 35 Cal.App.4th 733, 751), “in determining whether the burden of proof has shifted, the trial court . . . must consider all of the papers before it.” (Ibid.) Consequently, cases have recognized a moving defendant “can . . . rely on filings by plaintiff in opposition” to satisfy its burden of showing the plaintiff’s causes of action have no merit. (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122; see also Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1316.) “‘Th[e statute’s] unqualified reference to “the papers” before the court, without limitation to documents submitted with the original motion, also supports the reasonable inference that the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond. [Citation.]’ [Citations.]” (Villa v. McFerren, supra, 35 Cal.App.4th at p. 751.)
During his deposition, Siskind testified that in the mid-1990’s Bristol Park divided into two separate legal entities and then sold BPMM’s assets, which included “all of the leases,” “equipment,” “contracts,” and “administration,” to Foundation. At the same time, Bristol Park executed a professional services agreement with Foundation. The latter agreement was superseded by two other contracts executed in 1998 and 1999. The contractual recitals establish that after 1996, Foundation, not Bristol Park, contracted with Pacificare to provide medical services to the latter entity’s enrollees, and Foundation, not BPMM, provided management and utilization review services to Bristol Park. Plaintiff failed to present any evidence creating a triable issue of material fact concerning either BPMM or BPHR’s involvement in allegedly failing to provide adequate medical care to Madigan.
This evidence sufficed to shift the burden of producing evidence to plaintiff to establish a triable issue of material fact existed concerning BPMM and BPHR’s involvement in Madigan’s care. Since she failed to do so, the trial court properly granted BPMM and BPHR’s motion.
3. Hillebrand’s Motion
a. Background
The theory of plaintiff’s case against Hillebrand was that, as GNP’s agent, she failed to provide Madigan with the medical care he needed by blocking his access to that care. Hillebrand’s motion asserted “the undisputed facts prove [she] was not authorized to make any denials of requests for authorizations for medical benefits, . . . made no denials of any health benefits requested on behalf of [Madigan].”
According to the evidence submitted by the parties, as an ambulatory case manager for GNP, Hillebrand reviewed requests for home health service benefits submitted by physicians. If she determined a member’s health plan covered a service, she could authorize it. But if the requested service did not appear to be covered, Hillebrand would forward the request to GNP’s medical director. Hillebrand testified in a deposition that she “review[ed]” medical services authorization requests “for medical necessity and either authorized it or, if there’s not enough information, then I . . . tr[ied] to get more information, . . . and anything I c[ould not] authorize or d[id not] have the expertise to authorize I w[ould] take to the medical director for a determination.”
Denials were made by the plan’s medical director. While sometimes Hillebrand would “make recommendations” to the medical director on whether to approve a service request, she did not have authority to deny the request and did not do so. In a deposition submitted by plaintiff in opposition to Hillebrand’s motion, a former GNP medical director testified that “any denial of service was made either by me or . . . the health plan . . . .” In a response to plaintiff’s interrogatories, GNP’s chief executive officer also stated “Hillebrand . . . could not, and did not, make any final decisions pertaining to any denial of a non-covered benefit request for health care services submitted by or on behalf of Daniel Madigan.”
The evidence submitted by the parties on Hillebrand’s motion also focused on specific allegations that GNP allegedly wrongfully denied medical service requests for Madigan’s care. Before Madigan’s transfer to GNP, St. Joseph Hospital’s home health agency had determined that Madigan was homebound and had requested his physician request authorization for home health services. Based on this information, Bristol Park authorized home health visits. Dr. Etzkorn, Madigan’s new primary care physician, testified in a deposition that he believed Madigan needed continued home health care and that he requested it on January 19, 2001 on a preprinted form used by GNP. Dr. Donald Drake, GNP’s medical director at the time, denied the request on January 23. On a blank line just below the denial preceded by the printed word “Reason,” appeared a handwritten statement, “Not home bound. No skilled need.” The request was later resubmitted and Hillebrand authorized an outpatient visit to Hoag for Madigan.
That same month, Etzkorn sought authorization to provide a fully automatic bed to Madigan, plus lotion and wipes for use with self-catheterization equipment, utilizing the same preprinted request for authorization forms. Drake again denied both requests with an explanation that the bed and materials were not covered benefits. A second request for an automatic bed was submitted February 2. The request form reflects Drake denied it and contains the handwritten explanation that “member has been auth[oriz]ed for standard electric bed.”
In April, Madigan was hospitalized after he fainted while waiting at a laboratory to have his blood withdrawn. Dr. Eilbert, the attending physician, discharged him with instructions for weekly blood testing to manage the level of Coumadin in his system. Subsequently, Etzkorn filed a preprinted request for supplies consisting of “Saline/heprin for Porta Cath Flush.” Hillebrand redirected the request “To Rx Benefit.”
On May 1, Etzkorn submitted a request for a home health nurse for both physical therapy and testing to monitor the level of Coumadin in Madigan’s blood. At the bottom of the form appears the following notation apparently in Hillebrand’s handwriting: “5/4/01. 3:25 [–] [Spoke with] Dr. Etzkorn – Hold off as Dr. Eilbert [discontinued] Coumadin on [discharge] from Hoag [secondary to a] bleed.” Hillebrand testified at her deposition that she did not take any action of this request, claiming Etzkorn “rescinded this authorization because the patient was not on Coumadin, and, therefore, did not need blood draws.”
b. Analysis
Plaintiff attacks Hillebrand’s motion on several grounds. All of these contentions lack merit.
First, plaintiff asserts “Hillebrand’s motion . . . fails to comply with the requirements” of the applicable statute and court rule (Code Civ. Proc., § 437c; Cal. Rules of Court, rule 3.1350), arguing she “fail[ed] to show that one or more elements of each cause of action cannot be established.” Not so. Hillebrand’s motion specifically asserted “[s]he owed no duty to [d]ecedent” and “breached no duty” because she “was not authorized to make any denials of requests for authorizations for medical benefits, and, in fact, made no denials of any health benefits requested on behalf of [d]ecedent.” Plaintiff also concedes the trial court granted Hillebrand’s motion on the ground plaintiff failed to present evidence establishing Hillebrand’s acts caused Madigan’s injuries. Since the elements of duty and a breach of that duty were essential to each of plaintiff’s causes of action, the foregoing argument sufficed to notify her of which elements Hillebrand claimed could not be established.
Next, plaintiff cites the trial court’s simultaneous ruling that denied GNP’s motion for adjudication on the amended complaint’s intentional tort claims and request for punitive damages. But plaintiff presents neither argument nor authority supporting the suggestion that this ruling somehow undermines the order granting Hillebrand’s summary judgment motion. Such a perfunctory single sentence assertion is insufficient to preserve the argument for appellate review. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; see also Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [even on appeal from summary judgment, failure to discuss issue in opening brief results in waiver of the claim because “[t]hough summary judgment review is de novo, review is limited to issues adequately raised and supported in the appellant’s brief”].)
Third, plaintiff attacks the trial court’s overruling of her evidentiary objections to the supporting documentation for Hillebrand’s summary judgment motion. Plaintiff notes much of the supporting documentation is merely attached to a declaration signed by an attorney representing Hillebrand. (Snider v. Snider (1962) 200 Cal.App.2d 741, 754 [statement in declaration that “facts stated herein are within the personal knowledge of the affiant, and the affiant, if sworn as a witness, can testify competently thereto[]” “has no redeeming value and should be ignored” if “the facts stated do not themselves show it” is true].) But plaintiff’s opposition contains a declaration by one of her attorneys incorporating much of the same documentation, including deposition excerpts, interrogatory responses, and business records with copies of declarations executed by the custodians of records from the various entities submitting these materials. In light of plaintiff’s own documentation of the relevant facts, the defects in plaintiff’s moving papers become irrelevant. (Villa v. McFerren, supra, 35 Cal.App.4th at p. 751.)
Finally, on the merits, plaintiff notes her “claim [against Hillebrand] is based on the fact that Hillebrand withheld medical care and treatment from Mr. Madigan,” because “Hillebrand did, in fact, deny Mr. Madigan needed care, contrary to the trial court’s” ruling. But the record fails to support plaintiff’s claim Hillebrand denied medical care to Madigan.
A review of the documentation plaintiff cites in support of her denial of medical care claim reflects the assertions range from sheer conjecture to blatant misstatements of the facts. For example, plaintiff’s opening brief repeatedly claims Hillebrand denied medical service requests either orally or in writing. But the record references for these assertions indicate each one misstates the record. All but two of the alleged denials were made by GNP’s medical director. While it is true the denials contain the director’s stamped signature, there is no evidence Hillebrand made the decision to deny the request herself without first having it reviewed by Drake. In the remaining two instances, Hillebrand either redirected the authorization request or testified the request for service was rescinded by the requesting physician.
Plaintiff’s opening brief refers to statements made to her by representatives of other health care agencies involved in Madigan’s care either repeating statements purportedly made by Hillebrand to them or which suggest that individual’s personal animosity toward Hillebrand. Much of this material amounts to inadmissible hearsay. More importantly, since this material fails to support an inference that Hillebrand personally denied medical care service requests for Madigan, it is irrelevant.
In addition, plaintiff’s opening brief claims Ann Kaiser, an employee with an agency providing home health care to Madigan, testified in a deposition “that it was more difficult to obtain authorization for continued home health visits, beyond the initial evaluation, from Hillebrand of GNP than . . . from other medical groups . . . .” Again, this misstates the record. In the portions of the deposition cited in support of this statement, Kaiser never once mentioned Hillebrand by name. Rather, Kaiser testified it was more difficult to obtain approval for a continuation of benefits from GNP. At another point in her deposition, Kaiser testified about her being informed GNP had concluded Madigan was not homebound. When asked if she was “[b]eing told [of this finding] by . . . Hillebrand,” Kaiser responded, “I was being told by GNP,” with its finding “communicated by” Hillebrand.
Under these circumstances, we conclude no triable issue of material fact has been raised concerning Hillebrand’s breach of any duty owed to Madigan.
4. The Subsequent Jury Verdicts for the Remaining Defendants
In their briefs, defendants note that, in mid-2007, while this appeal was pending, a jury returned special verdicts in favor of the remaining defendants in the underlying action, including Bristol Park and GNP. BPMM and BPHR contend these verdicts support affirmance of the judgment on appeal because the verdicts render the appeal moot. This argument lacks merit, as defendants admit no final judgment has yet been entered for the remaining defendants.
DISPOSITION
The judgments are affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: O’LEARY, J., IKOLA, J.