Defendant CHOC Children?s at Mission Hospital (?CCMH?) filed a motion for summary judgment, or, in the alternative, summary adjudication of issues.? The motion for summary judgment is granted.
CCMH?s request for judicial notice of the Complaint and Answer to the Complaint filed in this matter is denied.? It is unnecessary to ask the court to take judicial notice of materials previously filed in this case.? ?[A]ll that is necessary is to call the court?s attention to such papers.?? (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ? 9.53.1a p.9(l)-33.)
?[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.)? ?A prima facie showing is one that is sufficient to support the position of the party in question.?? (Id.?at p. 851.)? A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action.? (Code Civ. Proc., ? 437c, subd. (p)(2).)? The scope of this burden is determined by the allegations of the plaintiff?s complaint.? (FPI Development v. Nakashima?(1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion];?580 Folsom Associates v. Prometheus Development Co.?(1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff?s allegations as a matter of law.? (Brantley v. Pisaro?(1996) 42 Cal.App.4th 1591, 1597.)
Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.? (Aguilar v. Atlantic Richfield Co., supra,?25 Cal.4th at pp. 854-855;?Union Bank v. Superior Court?(1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff?s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see?Scheiding v. Dinwiddie Constr. Co.?(1999) 69 Cal.App.4th 64, 80-81 [finding?Union Bank?rule only applies where discovery requests are broad enough to elicit all such information].)? Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.? (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
On July 24, 2018, the parties filed a document entitled ?Stipulation of Plaintiffs? Non-Opposition to Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues, by Defendant CHOC Children?s at Mission Hospital.? The stipulation provides that Plaintiffs will not oppose CCMH?s Motion under the conditions that ?1.? Plaintiffs agree and withdraw their claim that defendant, SIGRID BURRUSS, M.D. [?Dr. Burruss?], was, and is, agent of CCMH; and [?] 2.? CCMH agrees and withdraws from their MSJ/MSA the negligent infliction of emotional distress issues numbers 4 and 5 as to agency.?
Here, CCMH?presented uncontradicted expert witness testimony that CCMH?s conduct fell within the community standard of care.??CCMH met its initial burden?that the causes of action for medical malpractice and negligent infliction of emotional distress have no merit as to CCMH. ?With the Stipulation?s conditions, the Motion is unopposed. Plaintiff has not presented a triable issue of material fact. (Code Civ. Proc., ? 437c, subds. (a), (p)(2); see also, Health & Saf. Code, ? 1371.25;?Gopal v. Kaiser Foundation Health Plan, Inc.??(2016) 248 Cal.App.4th 425, 431;?Willard v. Hagemeister?(1981) 121 Cal.App.3d 406, 412-414;?Burgess v. Superior Court?(1992) 2 Cal.4th 1064, 1072.)? Accordingly, based upon the Motion, supporting papers, and the Stipulation, CCMH?s motion for summary judgment is granted.
CCMH shall give notice of the ruling.