Filed 8/31/26 Rouse v. Stanford Health Care CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CHERYL ROUSE, H052800 (Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 21CV377892)
v.
STANFORD HEALTH CARE et al.,
Defendants and Respondents.
Cheryl Rouse filed this action for medical malpractice against defendants Stanford Health Care (Stanford) and Benjamin Chung, M.D. (Dr. Chung). Rouse alleged that in December 2019, defendants had negligently performed surgery, a robotic nephrectomy, for the removal of her right kidney that resulted in permanent injuries.
Defendants moved for summary judgment on the grounds that Rouse could not establish two elements of her claim for medical malpractice, namely, that defendants had breached their duty of professional care to Rouse, and that any breach of duty caused her injuries. Defendants submitted the declaration of an experienced urologist who had performed numerous robotic nephrectomies, who declared that defendants had not breached the standard of care, and any alleged breach had not caused Rouse’s injuries. Rouse opposed the motion, submitting the declaration of a general surgeon who provided opinions on breach of the standard of care and causation. Rouse’s expert did not state
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that (1) he had any experience with robotic nephrectomies or kidney surgery in general, or (2) he was familiar with the standard of care for medical practitioners performing robotic nephrectomies similar to the circumstances involving Rouse’s surgery. The trial court granted the motion for summary judgment on October 10, 2024. The trial court found that defendants had met their initial burden of showing that one or more essential elements of the complaint for medical malpractice (breach of duty and causation) could not be established. The court concluded further that the declaration of Rouse’s expert had not established he was qualified to render opinions regarding her surgery, and in any event, his opinions were conclusory and lacked evidentiary foundation. The trial court thus concluded that Rouse, in response to defendants’ showing in their motion, had failed to raise a triable issue of material fact. Judgment was entered in favor of defendants on November 7, 2024.
Rouse, representing herself on appeal, asserts that, through the declaration of her medical expert, she had raised triable issues of material fact as to whether defendants had breached a duty of care owing to her and whether that breach had caused her injuries. We conclude: (1) defendants met their initial burden of establishing that the action had no merit because one or more of the elements of the negligence claim could not be established; (2) the trial court did not abuse its discretion by concluding that Rouse had failed to demonstrate that her expert was qualified to give opinions concerning her surgery; and (3) based upon Rouse’s failure to provide evidence responding to the defendants’ showing that the negligence claim lacked merit, the trial court properly granted summary judgment. We will therefore affirm the judgment.
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I. PROCEDURAL BACKGROUND A. Pleadings In her complaint filed on February 18, 2021, Rouse alleged that commencing on December 12, 2019,1 defendants provided treatment to her for a nonfunctional kidney, resulting in her admission for a “right robotic simple nephrectomy.” Rouse alleged that the procedure was performed negligently, causing her “permanent injury” that included a ruptured gallbladder and the “retention of the problem kidney.” Defendants answered the complaint.
B. Summary Judgment Motion 1. Defendants’ Motion Defendants filed a motion for summary judgment in July 2024.2 They argued generally that: (1) Rouse was properly informed of the risks of the robotic nephrectomy prior to her consenting to the operation; (2) neither Stanford nor Dr. Chung breached the standard of care in performing the operation; and (3) any breach of the standard of care by either of them did not cause Rouse’s injuries.
Defendants’ evidence included excerpts from the depositions of Dr. Chung and Rouse, as well as excerpts of Rouse’s medical records. Those records showed that, prior to the December 12 robotic right nephrectomy, Rouse had a complicated medical and surgical history that included multiple abdominal surgeries.
Rouse had an office visit with Dr. Chung on June 3, 2019. Because Rouse’s right kidney was essentially nonfunctional, Dr. Chung discussed with her the possibility of its removal, with one option of doing so by performing a robotic nephrectomy. Dr. Chung
1 All dates are 2019 unless otherwise specified. 2 Defendants, in their notice of motion and accompanying memorandum, stated that they were seeking, in the alternative to summary judgment, summary adjudication. They did not explain in their motion the nature of this alternative relief that was being sought. We will therefore refer to defendants’ motion as being one that sought summary judgment only.
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testified that he advised Rouse of the risks associated with the operation. The medical records indicated that Dr. Chung explained to Rouse that there were multiple risks posed by a robotic nephrectomy, including “bleeding, infection, damage to adjacent structures, [and] open conversion”; she understood those risks and stated that she wished to go forward with the operation. Dr. Chung testified that it was his custom and practice to review with patients the risks associated with a robotic nephrectomy, including “damaging adjacent structures”; it was also his custom and practice in cases in which the patient’s circumstances were similar to those present with Rouse (prior surgeries and obesity) to advise the patient that there could be complications with the operation.
On September 10, Rouse had an office visit with a physician’s assistant (PA), Charlene Chow. PA Chow reviewed with Rouse the planned robotic nephrectomy, and the “risks and potential complications” associated with it. They discussed the risks of the surgery as including “injury to adjacent structures” and “trauma to nearby organs.” The records reflect that Rouse confirmed with PA Chow that she wanted to proceed with the robotic nephrectomy. Rouse signed an informed consent form on September 10 authorizing the operation.
Rouse had another presurgical visit on November 9 in which PA Chow advised Rouse of the risks associated with the robotic nephrectomy surgery.
On the day of surgery, December 12, the medical records showed that Rouse again gave her informed consent to the robotic nephrectomy and was advised that the risks included damage to adjacent structures.
Defendants also submitted a declaration from their medical expert, Jaime Landman, M.D., in support of their motion for summary judgment. Dr. Landman received his medical degree in 1993; completed internship and residency programs in urology; participated in a two-year fellowship in minimally invasive urology; is board certified in urology; has been chair of the Department of Urology at the University of California, Irvine School of Medicine since 2011; and has also been codirector of the
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medical school’s minimally invasive urology fellowship program since 2011. He declared that over the years he had performed hundreds of robotic nephrectomies.
Dr. Landman stated in his declaration that he was “familiar with the standard of care in the same or similar location as [defendants] with respect to consenting a patient for a robotic nephrectomy as well as the performance of this procedure.”
He declared that he had reviewed Rouse’s Stanford medical records, and he had reviewed the depositions of Rouse and Dr. Chung. Dr. Landman stated that from that review, his understanding of what occurred during and after Rouse’s December 12 surgery was as follows: (a) Dr. Chung was the attending physician and was assisted by two physicians and a PA; (b) as is typically the case with robotic nephrectomies, a Veress needle was inserted in the standard location to insufflate the abdominal cavity with CO2 so that there could be visualization to remove the kidney; (c) the needle was then drawn back to check to make sure the needle had not struck an organ or blood vessel, and it was found to contain bile, the source of which was presumably the gallbladder; (d) the needle was inserted a second time in a different location, and no fluid was indicated that time; (e) the medical team began to introduce CO2 through the needle; (f) two or three seconds after beginning to introduce CO2, Rouse began having trouble with ventilation and had hypotension; (g) the surgery was terminated; (h) Rouse was stabilized and delivered to the intensive care unit; (i) two days later, a cholecystectomy was performed to remove Rouse’s gallbladder; (j) on December 18, surgery was performed to repair of an umbilical hernia; and (k) Rouse was released from the hospital on December 26.3 In Dr. Landman’s opinion, Rouse was given appropriate informed consent for the December 12 robotic nephrectomy. This informed consent consisted of: (1) Dr. Chung informing Rouse on June 3 of the risks of the operation (including risks associated with
3 This summary of what occurred during and after Rouse’s December 12 surgery was supported by Rouse’s Stanford medical records submitted in support of the summary judgment motion.
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her prior surgeries and her obesity), and his discussion of several options for removal of her right kidney; (2) PA Chow advising Rouse of the risks of a robotic nephrectomy on September 10 and November 19; and (3) Dr. Chung informing Rouse of the surgery risks on the day of the operation, December 12. And Dr. Landman noted that Rouse had signed a consent form on September 10 indicating that she had been informed of the risks and consented to the operation. Dr. Landman opined that the information that had been provided to Rouse for the surgery to which she consented clearly encompassed the results of the robotic nephrectomy, namely, the “risk of damage or injury to adjacent structures and organs,” i.e., the puncture of the gallbladder and the CO2 embolus resulting from injury to a blood vessel.
Dr. Landman gave the opinion (as detailed, post) that defendants had “fully complied with the standard of care” in performing the robotic nephrectomy upon Rouse. And Dr. Landman opined that “to a reasonable degree of medical probability, a breach of the standard of care did not cause [Rouse’s] injuries.”
2. Rouse’s Opposition to Motion Rouse—at that time represented by counsel—opposed the motion. She asserted generally that the robotic nephrectomy was performed negligently and that her permanent injuries, including the required removal of her gallbladder, were proximately caused by that negligence.
Rouse contended there was a triable issue of material fact as to whether defendants were negligent in performing the robotic nephrectomy, and that they proximately caused her injuries. This position was founded solely upon the opinions expressed by her expert, Gabriel Akopian, M.D., in his declaration in opposition to summary judgment.4 Dr. Akopian is a board-certified surgeon since 2007, and he is “a staff surgeon for Cedars Sinai Medical Center, with a clinical practice focused on minimally invasive and 4 In opposing summary judgment, Rouse did not contest that she was properly informed by defendants of the risks or that she gave her informed consent to the surgery.
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robotic surgery.” He declared that he had reviewed Rouse’s medical records, her deposition testimony, Dr. Chung’s deposition testimony, and Dr. Landman’s declaration. He stated that: (1) “the decision to insert the Veress needle in the right upper quadrant [of the patient] … was inappropriate”; (2) the reinsertion of the Veress needle after bile was detected violated the standard of care: (3) “Defendant’s performance fell below the standard of care”; and (4) “a breach of the standard of care caused Plaintiff’s injuries.”
Based upon this expert’s declaration, Rouse argued that the motion for summary judgment should be denied.
3. Defendants’ Reply
Defendants asserted in their reply that the declaration of Rouse’s expert, Dr.
Akopian, should not be considered because it “lack[ed] any evidentiary value.” Included in the reply were numerous objections to that expert declaration. Defendants’ objections included an overarching objection: “Dr. Akopian’s declaration fails to attest that he is familiar with the standard of care as that of physicians in similar circumstances as Dr. Chung in this case. [Citation.] Dr. Akopian is a general surgeon and does not specialize in urologic surgeries. Therefore, he is not competent to offer opinions on a urologic surgery he does not perform.”
4. Order
There was no appearance by the parties at the noticed hearing on defendants’
motion for summary judgment, and the court adopted its tentative decision at that time. The court filed its order on October 10, 2024, granting the motion for summary judgment.
The trial court found that defendants, through the declaration of their medical expert, Dr. Landman, satisfied their initial burden in moving for summary judgment of showing that Rouse could not establish at least one element. The trial court concluded further that Rouse had failed to meet her burden in responding to the motion of showing the existence of a triable issue of material fact that defendants had breached the standard
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of care or that such breach caused her damage. The basis of the court’s conclusion was that Rouse’s expert, Dr. Akopian, (1) had not established that he was familiar with the standard of medical care required of defendants under circumstances similar to those involving Rouse’s surgery, and (2) had presented opinions that were conclusory and “lack[ed] any proper evidentiary foundation.” Judgment on the summary judgment order in favor of defendants was thereafter entered on November 7, 2024.
Rouse filed a notice of appeal from the judgment.
II. DISCUSSION
A. Applicable Law 1. Summary Judgment Generally Motions for summary judgment are governed by Code of Civil Procedure section 437c.5 Summary judgment may be granted only if it disposes of the entire action. (Id., subd. (a)(1) [motion proper when “it is contended that the action has no merit or that there is no defense to the action”].) “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 (Aguilar).) Although in the 1980’s and 1990’s, summary judgment motions were viewed by the courts much less favorably than today (see Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542), the motion procedure “is now seen as ‘a particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)
The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment may establish that a cause of action has no merit by showing that “[o]ne or more elements
5 Further unspecified statutory references are to the Code of Civil Procedure.
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of the cause of action … cannot be established” by the plaintiff. (§ 437c, subd. (p)(2); see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [court assesses whether “the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case,”].) Alternatively, a defendant may show the cause of action is without merit by establishing “that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) “Once the defendant meets the foregoing burden, ‘the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to that cause of action … [and] set forth the specific facts showing that a triable issue of material fact exists as to that cause of action … .’ [Citation.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler); see § 437c, subd. (p)(2).) The existence of a triable issue of material fact is shown “if, and 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, supra, at p. 850, fn. omitted.)
“In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation].” (Aguilar, supra, 25 Cal.4th at p. 843.) In considering the parties’ evidence in connection with a motion for summary judgment, the court “strictly scrutinize[es]” the declarations submitted by the moving party and “liberally constru[es]” those offered by the opposing party, and it “resolv[es] any evidentiary doubts or ambiguities in [the opposing party’s] favor.” (Saelzler, supra, 25 Cal.4th at p. 768; see also Aguilar, supra, at p. 843.)
But “[o]nly admissible evidence is liberally construed in deciding whether there is a triable issue.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 (Bozzi), original italics; see also Hayman v. Block (1986) 176 Cal.App.3d 629, 643 [in ruling on a summary judgment motion, “the court is bound to consider the competency of the evidence presented”].) “Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation].” (Sinai
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Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196–197.) Thus, although the opposing party may rely upon inferences, “those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. [Citation.]” (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161; see also Foltz v. Johnson (2017) 16 Cal.App.5th 647, 662 [“[s]peculative possibilities are not substantial evidence” sufficient to raise a triable issue of fact to defeat summary adjudication].)
2. Medical Malpractice To establish a claim for medical malpractice, the plaintiff must plead and prove:
“ ‘(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. [Citation.]’ [Citation.]” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877; see also Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) In determining the standard of care in such cases, the medical provider must “exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215 (Alef).)6 In showing causation in a medical malpractice case, the plaintiff must convince
6 In the first half of the 20th Century, our Supreme Court emphasized the importance of the medical malpractice expert’s knowledge of the standard of care in the locale where the alleged negligence arose. (See, e.g., Lawless v. Calaway (1944) 24 Cal.2d 81, 86; Hesler v. California Hospital Co. (1918) 178 Cal. 764, 766.) In 1949, the high court held that “[t]he essential factor” for a medical expert’s qualification was “knowledge of similarity of conditions; geographical proximity is only one factor to be considered.” (Sinz v. Owens (1949) 33 Cal.2d 749, 756.) Since then, the standard of care for physicians requires “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Bardessono v. Michels (1970) 3 Cal.3d 780, 788; see also Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468–469 (Avivi).)
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a trier of fact that, from the evidence, it may be “ ‘infer[red] that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.’ ” (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1166.)
The plaintiff’s obligation in a medical malpractice case is to present evidence from a medical expert that the defendant breached the duty of care, and that such breach caused the plaintiff’s injury. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) “The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” (Alef, supra, 5 Cal.App.4th at p. 215.)
3. Standards of Review Since summary judgment motions involve pure questions of law, we review independently the granting of summary judgment to ascertain whether there is a triable issue of material fact justifying the reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener).) In doing so, we “consider[] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) 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. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
The trial court’s order granting summary judgment here was based upon its conclusion that the opinions expressed in the declaration of Rouse’s expert, Dr. Akopian, could not be considered because (1) the declaration “reflect[ed that Dr. Akopian had] a lack of familiarity with the standard of care in ‘similar circumstances,’ ” and (2) “[Dr.] Akopian’s opinions lack[ed] any proper evidentiary foundation.” A ruling by the trial
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court admitting or excluding expert testimony is reviewed for abuse of discretion. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises).) This abuse of discretion standard of review, under “the weight of authority,” is applicable to evidentiary rulings in the context of summary judgment motions as well as to rulings at trial. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 (Alexander); see also San Francisco Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 962 & fn. 7 [trial court did not abuse its discretion by excluding testimony of plaintiff’s expert in opposition to summary judgment].)7 As explained in Alexander, supra, at page 226: “De novo review is proper where evidentiary objections raise questions of law, such as whether or not a statement is hearsay. [Citations.] In contrast, evidentiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court.”
“A ruling that constitutes an abuse of discretion [is] … one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (Sargon Enterprises, supra, 55 Cal.4th at p. 773.) Abuse of discretion is a deferential standard. Even were we to differ with the trial court concerning its conclusion, if that “conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881–882.) The burden is on the appellant to show the trial court abused its discretion. (Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1163.)
7 The California Supreme Court has not decided the issue. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to decide whether standard of review of evidentiary rulings in connection with summary judgment motions is de novo or abuse of discretion].)
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B. Whether Defendants Met Their Summary Judgment Burden It cannot be disputed that this case involved “a medical process or procedure [that was] not a matter of common knowledge, [and that] expert testimony [was] required to show that a doctor breached the standard of care of the medical community.” (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071.) It was therefore defendants’ initial burden in moving for summary judgment to present competent expert testimony.8 Defendants presented the declaration of their expert, Dr. Jaime Landman, who has been a urologist for approximately 30 years. Since 2011, he has served as chair of the Department of Urology at the University of California, Irvine School of Medicine and has been codirector of the medical school’s minimally invasive urology fellowship program. Dr. Landman stated in his declaration that he was “familiar with the standard of care in
8 Rouse did not contest below that defendants had met their initial summary judgment burden of establishing that the action had no merit because one or more elements of Rouse’s claim could not be established. Likewise, she does not challenge here the trial court’s finding that defendants met that burden. She has “doubly forfeited” the argument. (See Moore v. Centrelake Medical Group, Inc. (2022) 83 Cal.App.5th 515, 541, fn. 13 [appellants “ ‘doubly forfeited’ ” argument by failing to assert contention in trial court or in opening brief on appeal].)
Because we review independently the propriety of granting summary judgment (Wiener, supra, 32 Cal.4th at p. 1142), and since Rouse, in responding to the motion, would have had no burden to show a triable issue of material fact if defendants had failed to meet their initial burden (see Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 656), we will nonetheless address whether the record shows that defendants established that burden here. Because “the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers[, a]nd because a reviewing court employs the same three-step process [as the trial court in (1) reviewing the issues as identified by the pleadings, (2) determining if moving party has established that judgment should be rendered in its favor, and (3) determining, if the movant’s burden is met, whether the opposing party has shown a triable issue of material fact] in the course of its de novo review of a summary judgment,” we will address whether defendants met their initial burden, notwithstanding Rouse’s forfeiture of any challenge to the issue. (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 367.)
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the same or similar location as [defendants] with respect to consenting a patient for a robotic nephrectomy as well as the performance of this procedure.” He stated that he, in fact, had performed hundreds of robotic nephrectomies over the years.
Based upon his experience and from a review of the records provided him (Rouse’s Stanford medical records, and depositions of Rouse and Dr. Chung), Dr. Landman gave the opinion, “to a reasonable degree of medical probability,” that all aspects of the robotic nephrectomy performed upon Rouse “fully complied with the standard of care.” He stated that performance of the surgery laparoscopically was appropriate and preferred over open surgery involving a major incision, particularly given the patient’s circumstances. Further, Dr. Landman declared that the fact that the Veress needle punctured Rouse’s gallbladder did not signal a deviation from the standard of care, because the needle was inserted for the nephrectomy at the appropriate location of the abdomen, and the puncture of that organ was a risk of the procedure. And he opined that any contention that the surgery should have been stopped immediately after the first insertion of the needle that was found on its retraction to contain bile would be without merit, stating: “Continuing the procedure under these circumstances allows the surgeon to determine if the puncture injury needs to be repaired or not (they often do not); and if a repair is required, it can be performed laparoscopically, or if necessary, the surgery can be converted to an open procedure which [Rouse] specifically consented to. The Veress needle was appropriately inserted, during the second attempt, in a different location.”
Dr. Landman, in summary, opined: “Despite the complications (puncture of the gallbladder and CO2 embolus), the manner in which the procedure was performed, and the various steps taken to address the complications, all complied with the standard of care. Just because known, rare risks occur during a procedure, does not mean the standard of care was breached.”
Dr. Landman also opined that “to a reasonable degree of medical probability, a breach of the standard of care did not cause [Rouse’s] injuries.”
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The trial court concluded that defendants had met that burden by showing that at least one element of Rouse’s negligence claim—in fact, two elements—could not be established: Rouse could not show “either (1) the lack of compliance with the standard of care, or (2) the causation of Rouse’s injuries as a result of the lack of compliance with the standard of care.”
From our independent review of the propriety of granting summary judgment based on the absence of a triable issue of material fact (see Wiener, supra, 32 Cal.4th at p. 1142), we reach the same conclusion as the trial court. Dr. Landman presented strong qualifications for offering his opinions on whether defendants had breached the duty of care in performing the robotic nephrectomy upon Rouse. Dr. Landman—having practiced and taught in the field of urology for many years, having been, since 2011, the co-chair of invasive urology fellowship program at UC Irvine Medical School, and having performed hundreds of robotic nephrectomies—was well qualified to address the professional care rendered by defendants in this instance. And these qualifications amply supported his statement that he was “familiar with the standard of care in the same or similar location as [defendants] with respect to consenting a patient for a robotic nephrectomy as well as the performance of this procedure.”
Dr. Landman opined unequivocally that defendants had “fully complied with the standard of care” in performing the robotic nephrectomy upon Rouse. Further, in rendering this opinion, he specifically discussed various aspects of the surgery to support that opinion. In short, defendants, through the submission of Dr. Landman’s declaration, met their burden under the summary judgment statute of showing that “[o]ne or more elements of the cause of action … cannot be established” by the plaintiff. (§ 437c, subd. (p)(2); see also Avivi, supra, 159 Cal.App.4th at p. 468 [concluding that defendants met their initial burden in summary judgment motion through expert’s declaration that
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plaintiff could not establish breach of duty element]; Zavala v. Arce (1997) 58 Cal.App.4th 915, 934–935 [same].)9 C. Whether Opposition Raised Triable Issue of Material Fact Rouse contends in her opening brief that the trial court erred in granting summary judgment in favor of defendants because it “resolved credibility issues, weighed expert opinions, and adopted [defendants’] version of disputed events.” In her reply brief, Rouse acknowledges that the court excluded the evidence submitted in the declaration of her expert, Dr. Akopian. She asserts that in doing so, however, the trial court had in fact weighed the opinions of the parties’ two experts, and it had rejected the opinion of her expert on the two issues of breach of the standard of care and causation.
At the outset, we disagree with the premise of Rouse’s argument that the trial court erroneously weighed the competing opinions of the parties’ respective experts. It is plain that the court, rather than weighing the strength of Dr. Akopian’s opinions, concluded they could not be considered at all because he had not demonstrated that he was qualified to render opinions concerning Rouse’s surgery and due to other evidentiary defects in his declaration. The court therefore had no expert evidence from Rouse to consider that would rebut defendants’ prima facie showing that there had been no breach of the standard of care and that there was no evidence of causation.
Accordingly, we address whether the trial court abused its discretion in concluding the opinions expressed by Dr. Akopian could not be considered as a rebuttal to defendants’ showing that the claim had no merit because Dr. Akopian failed to demonstrate, as a physician-expert, his “familiarity with the standard of care in ‘similar circumstances.’ ” In conducting this review, we focus on whether Dr. Akopian presented
9 Rouse submitted objections to portions of Dr. Landman’s declaration. The trial court overruled these objections. Rouse does not argue on appeal that the court erred with respect to these evidentiary rulings. Rouse has forfeited this challenge. (See Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 182.)
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sufficient facts in his declaration to show that he was familiar with the standard of care required under similar circumstances as was involved in the treatment of Rouse through a robotic nephrectomy.
1. Expert Testimony Generally A person may qualify to testify as an expert “if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) The expert, if qualified to testify in such capacity, may render opinions that are “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) A party establishes the qualifications of his or her expert by “showing that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions involving the subject matter of the opinion. [Citations.] ‘Whether a person qualifies as an expert in a particular case … depends upon the facts of the case and the witness’s qualifications.’ [Citation.] ‘[T]he determinative issue in each case is whether the witness has sufficient skill or experience in the field so his testimony would be likely to assist the jury in the search for truth.’ ” (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115 (Howard Entertainment).)
“[T]he standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citation.] The test for determining familiarity with the standard of care is knowledge of similar conditions. [Citation.]” (Avivi, supra, 159 Cal.App.4th at p. 470, original italics.) Therefore, “the appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the [defendants].” (Id. at p. 465.) The medical malpractice expert “must have enough knowledge, learning and skill with the relevant subject to speak with
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authority, and he or she must be familiar with the standard of care to which the defendant was held.” (Id. at p. 467.)
Experts who opine in medical malpractice cases may do so by declaration in connection with motions for summary judgment. (See Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985 [defendant who submits “ ‘expert declarations that his conduct fell within the community standard of care … is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence’ ”].) “An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720.” (Bozzi, supra, 186 Cal.App.4th at p. 761.)
Parties submitting declarations supporting or opposing a summary judgment motion are bound by the same rules of evidence applicable at trial. (Bozzi, supra, 186 Cal.App.4th at p. 761.) “Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. (Code Civ. Proc., § 437c, subd. (d); [citation].) The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.” (Ibid., italics added.) And if “the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party’s claims, the opposing party’s burden is to produce a competent expert declaration to the contrary. [Citation.]” (Id. at pp. 761–762, italics added.)
2. Whether Dr. Akopian Was Competent to Testify as an Expert Dr. Akopian declared that he has been a board-certified general surgeon since 2007, and he is “the Director of the Huntington Hospital general surgery residency training program” and is “a staff surgeon for Cedars Sinai Medical Center, with a clinical
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practice focused on minimally invasive and robotic surgery.” Dr. Akolian’s curriculum vitae (CV) submitted with Rouse’s opposition detailed that he received his medical degree from Boston University Medical School in 2000; completed two residency programs in general surgery at Huntington Memorial Hospital in Pasadena between 2001 to 2006; and completed a fellowship program in minimally invasive surgery at University of Southern California Medical School in 2006 to 2007.10 Significantly, neither Dr. Akopian’s declaration nor his CV disclose that he has had any training or experience, performed any clinical work, performed any research, or participated in the writing of any medical publications related to: (1) urology; (2) urological surgery; (3) nephrology; (4) kidney disease or kidney surgery; (5) nephrectomies in general; or (6) robotic nephrectomies.11 Dr. Akopian did not state that he has ever performed, participated in, or even had training in, a robotic nephrectomy. Likewise, he did not declare that he is closely familiar with the essential aspects of the operation, such as the placement of the Veress needle during the commencement of a robotic nephrectomy, and the standard of care applicable if the presence of bile is detected during the retraction of the Veress needle during the procedure. Furthermore, and significantly, Dr. Akopian did not state in his declaration—or provide any information supporting the proposition—that, in substance, he was familiar with the standard of care applicable to defendants under circumstances similar to this case.
The “circumstances similar to those of the [defendants]” (Avivi, supra, 159 Cal.App.4th at p. 465) of which Dr. Akopian was required to have familiarity to qualify
10 Dr. Akopian did not authenticate his CV in his declaration, by identifying it or attesting to its accuracy. The document was attached to the declaration of Rouse’s attorney.
11 Dr. Akopian’s CV disclosed that he had participated in 14 publications, 18 presentations, and three laboratory research assignments, none of which appear to have involved urology or urological surgery, kidney disease, kidney surgery, nephrectomies, robotic nephrectomies, or robotic surgery in general.
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as an expert were the procedures, considerations, and risks associated with the performance of the specific medical procedure that Rouse alleges caused her injuries. Dr. Akopian provides no information of this kind that would qualify him as an expert to testify as to the standard of care, its breach, or causation relative to the procedure performed on Rouse. (Cf. Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 498 [medical expert rendered opinion in summary judgment declaration that defendant anesthesiologist met the standard of care declares that, based on having been “the anesthesiologist in laparoscopic cholecystectomies [the specific surgery at issue] more than 100 times, she was familiar with the surgical and anesthesia procedures involved in plaintiff’s surgery and with the types of injuries that can occur during them”].)
Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119 (Lowery), although not a medical malpractice action, is instructive and supports the trial court’s finding that Dr. Akopian’s expert qualifications were lacking. There, a 92-yearold woman suffered a stroke shortly after admission to a nursing home resulting in irreversible brain damage; she brought suit for elder abuse, alleging that the operators of the facility “ ‘failed to recognize, respond, notify a physician and get [her] to an acute care hospital for treatment’ for the stroke.” (Id. at p. 121.) She died shortly after the action was filed; her daughter substituted as plaintiff, as successor in interest, and she amended the complaint to add a cause of action for wrongful death. (Ibid.) The defendants challenged causation in their motion for summary judgment. (Ibid.) They submitted a declaration from an experienced neurologist who opined that the defendants’ conduct did not cause decedent’s stroke, and the time that elapsed from the stroke to her arrival at the hospital had no impact on the decedent’s medical outcome. (Id. at pp. 121– 122.) In opposition, the plaintiff submitted the declaration of Dr. Miller, a physiatrist, described as “ ‘an expert in physical medicine, rehabilitation, geriatrics and pain disorders.’ ” (Id. at p. 122.) The defendants objected that he was “not qualified to render
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an expert opinion on the causation of a stroke and that his opinions were conclusory and speculative.” (Id. at p. 122.) The trial court, in granting the defendants’ summary judgment motion, sustained the objection, concluding that Dr. Miller “ ‘ha[d] not explained how his training and experience qualifies him to give an opinion on neurological events such as the cause of an ischemic stroke.’ ” (Id. at p. 123.)
The appellate court in Lowery affirmed, concluding that the trial court’s sustaining of the objection to the declaration of the plaintiff’s expert was not an abuse of discretion. (Lowery, supra, 49 Cal.App.5th at pp. 124–125.) It held—in addition to finding the trial court’s having correctly concluded that Dr. Miller had failed to state an adequate basis for his opinions—that the trial court had not abused its discretion in concluding the plaintiff had failed to establish that Dr. Miller was properly qualified to render the opinions given. (Id. at p. 125.) The Lowery court held: “[P]laintiff cites no evidence in the record contradicting the court’s finding that Dr. Miller did not have the education or experience to render an opinion about the cause or treatment of [the decedent’s] stroke. This ground independently supports the exclusion of Miller’s declaration. … ‘[T]he qualifications of an expert must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient.’ ” (Ibid.)
Similarly, the appellate court in Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, upheld a challenge to the trial court’s order limiting a medical expert’s testimony due to the failure to demonstrate his competence on the subject matter. (Id. at p. 236.) There, the plaintiff-patient brought a medical malpractice suit against her physician, an orthopedic surgeon, who performed her hip replacement surgery. (Id. at p. 236.) After an adverse jury verdict and judgment, the plaintiff challenged on appeal the trial court’s ruling excluding the testimony of her nonretained expert, Dr. Filler. (Id. at p. 237.) The appellate court affirmed. It held that the trial court had properly exercised its discretion in limiting the causation testimony of the plaintiff’s expert to his observations from an imaging study he performed on the plaintiff, holding that “the trial court had a
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reasonable basis to conclude that [Dr. Filler’s] views on causation were too speculative to present to the jury.” (Id. at p. 248.) The appellate court reasoned: “An initial problem with Dr. Filler’s qualifications to express opinions about causation is that he does not perform such hip replacement surgery. He has treated at least 20 patients on neurological issues, after they received such surgery. In this case, he did not review the operative report or Defendant’s medical records, mainly reviewing the study he ordered and in limine materials. Although he was allowed to testify that he could see damage had occurred to the sciatic nerve, the court appropriately found he lacked a foundation to discuss how the damage was caused.” (Ibid.)
And in Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379 (Salasguevara), the appellate court reversed the trial court’s admission of expert testimony, concluding that it was without foundation. In Salasguevara, the plaintiff (a child, through his guardian ad litem) sued a drug manufacturer (Wyeth), as well as the physician who administered the drug, for personal injuries arising out of the administration of diptheria-pertussis-tetanus (DPT) vaccines. (Id. at p. 382.) Wyeth, challenging causation, moved for summary judgment. (Id. at p. 382.) It did not submit declarations from any of its four designated experts, who had significant specialty credentials in epidemiology, knowledge of DPT vaccines, and pediatrics; Wyeth, instead, relied solely on deposition excerpts from the plaintiff’s treating physician (Dr. Sexton). (Id. at pp. 384, 385–386.) The trial court granted the motion, implicitly accepting the qualifications of Dr. Sexton. (Id. at pp. 384–385.)12 The appellate court reversed. It concluded that Wyeth’s reliance on the treating physician’s deposition testimony to
12 The appellate court pointed out that the trial court had apparently improperly focused on whether the plaintiff had presented adequate testimony on causation in response to the motion, without it having first adequately considered whether Wyeth had satisfied its initial burden on summary judgment of showing that the claim was without merit because of the absence of one or more essential elements. (See Salasguevara, supra, 222 Cal.App.3d at pp. 384–385.)
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support the contention that the plaintiff could not establish causation was without merit because there was no foundation for his opinions: “[The record does not] show that Dr. Sexton has any training, experience or skill that would qualify him to give an opinion about DPT or the causation issues. … [T]here is no way, given the limited deposition excerpts submitted, to determine if [the opinion presented in his testimony] was based upon the doctor’s training, experience or skill. Lacking such necessary foundational predicates, the court must find that Wyeth failed to demonstrate Dr. Sexton’s competence to render an opinion on the issue of causation. Therefore, since the motion depends for its success on Dr. Sexton’s testimony, Wyeth’s motion for summary judgment must be denied.” (Id. at p. 386; see also San Antonio Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346, 352–353 [summary judgment improperly granted where trial court relied on declaration of the plaintiff’s expert, a registered nurse/nurse anesthetist, who had not shown she was qualified to “opine on the standard of care applicable to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury requires immediate surgical intervention, or whether that standard of care was breached”].)
From his declaration and CV, the trial court reasonably concluded, in substance, that Dr. Akopian did not possess “enough knowledge, learning and skill with the relevant subject [robotic nephrectomies] to speak with authority, and he … [did not establish he was] familiar with the standard of care to which the defendant was held.” (Avivi, supra, 159 Cal.App.4th at p. 467.)13 Dr. Akopian’s showing that he is a board-certified general
13 The trial court concluded: “ ‘General surgery’ and even general ‘robotic surgery” are not the same as kidney surgery, and there is nothing in the Akopian Declaration to indicate that he has any familiarity with this type of surgery—i.e., nephrectomies—or indeed, any familiarity with surgeries or diseases of the urinary system, at all. Urology is a distinct medical specialty, and Akopian is apparently not a urologist (or nephrologist). This reflects a lack of familiarity with the standard of care in ‘similar circumstances.’ ” (Footnote omitted.)
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surgeon and maintains “a clinical practice focused on minimally invasive and robotic surgery” did not establish his competence here to testify about matters pertaining to a specific surgery (a robotic nephrectomy) focused on a specific vital organ (the kidney)— including the standard of care, breach of that standard, and causation—for which he disclosed no expertise, training, or familiarity. (See Howard Entertainment, supra, 208 Cal.App.4th at p. 1115 [an expert’s “ ‘[q]ualifications on related subject matter are insufficient’ ”]; cf. Wright v. Williams (1975) 47 Cal.App.3d 802, 810–811 [where attorney specializing in particular field (e.g., maritime law) is sued for malpractice relating to that expertise, “then only a person knowledgeable in the specialty can define the applicable duty of care and opine whether it was met”].) As was true in Lowery, supra, 49 Cal.App.5th 119—where an expert in one field (physiatry) failed to show he was competent by showing he had the education and experience to render an opinion in a different medical discipline (the cause or treatment of a stroke)—Dr. Akopian did not demonstrate the requisite knowledge or familiarity with nephrectomies, including robotic nephrectomies, to testify to the standard of care and causation relating to that surgery. (See also Salasguevara, supra, 222 Cal.App.3d at p. 386 [treating physician indicating no experience with DPT injections or causation matters held not competent to testify as an expert].)14
14 We do not suggest that in any case involving the standard of care of a medical professional engaged in a specialized field, a witness is required in all instances to be a specialist practicing in that same field in order to qualify as an expert to render opinions concerning such matters as to standard of care, breach, and causation. (See Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1442 [fact that medical expert testifying “ ‘in an action concerned with a special field of medicine … [has received] different basic training is not necessarily a disqualifying factor; a physician trained in one medical school or branch of medicine may testify in a case involving a physician of another school, where he is familiar with the particular treatment involved’ ”].) Our conclusion here is based upon the principle that, regardless of whether the medical witness practices in the same specialty field at issue in the case, “[t]he party offering the expert must demonstrate the expert’s knowledge of the subject is sufficient[,
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We acknowledge that the trial court “strictly scrutinize[es]” the declarations submitted by the moving party and “liberally constru[es]” those offered by the opposing party. (Saelzler, supra, 25 Cal.4th at p. 768; see also Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 (Garrett) [liberal construction applies to expert declarations opposing a motion for summary judgment, meaning that “a reasoned explanation required in an expert declaration … need not be as detailed or extensive as that required” in an expert’s declaration supporting the motion].) However, “[t]his does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.” (Bozzi, supra, 186 Cal.App.4th at p. 761.)
An appellate court reviews a “trial court’s ruling on the admissibility of expert testimony for abuse of discretion.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154 (Sanchez); see also Avivi, supra, 159 Cal.App.4th at p. 472 [determination of expert’s qualifications is within discretion of trial court].) Rouse bore the burden of establishing that her expert witness, Dr. Akopian, had the appropriate qualifications to give testimony on the claimed breach of duty of care and causation. (See Charlie L. v. Kangavari (2025) 107 Cal.App.5th 1117, 1132.) Dr. Akopian failed to present in his declaration any evidence that he had any background, knowledge or expertise related to the surgery at issue in this case, a robotic nephrectomy. He did not state that he had ever performed a robotic nephrectomy or was familiar with the essential details of that surgery. Moreover, Dr. Akopian failed to state that he was familiar with the standard of care applicable to defendants under the circumstances of this case. Therefore, although we acknowledge that Rouse’s opposition papers were entitled to liberal construction (see Garrett, supra, 214 Cal.App.4th at p. 189), the trial court acted well within its discretion in concluding that Rouse had not met her burden of showing
which is] a determination left to the sound discretion of the trial judge.” (Ibid., italics added.)
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that Dr. Akopian was qualified to give expert testimony concerning the robotic nephrectomy at issue in this case. (See Sargon Enterprises, supra, 55 Cal.4th at p. 773 [“[a] ruling that constitutes an abuse of discretion [is] … one that is ‘so irrational or arbitrary that no reasonable person could agree with it’ ”].)
Defendants, indisputably, satisfied their initial burden as moving parties of establishing that the claim had no merit because plaintiff Rouse could not establish one or more elements of her negligence claim. Rouse, the trial court properly concluded, failed to show the competence of her expert, Dr. Akopian, to testify on standard of care, breach, or causation, and thus his declaration could not be relied on to oppose the medical evidence submitted on behalf of defendants. Because Rouse did not “produce a competent expert declaration to [contradict defendants’ showing]” (Bozzi, supra, 186 Cal.App.4th at pp. 761–762, italics added), she failed to meet her burden of providing evidence in response to defendants’ prima facie showing that one or more elements of her claim could not be established. Summary judgment was therefore proper. (See Sanchez, supra, 8 Cal.App.5th at pp. 168–170 [summary judgment in favor of defendants properly granted where plaintiff’s expert declaration responding that defendants’ breach of duty of care caused the injuries was properly stricken by trial court].)15 The judgment based upon the summary judgment order in favor of defendants must therefore affirmed.
15 The trial court also found that there were “issues with the evidentiary foundation for Akopian’s opinion disagreeing with Landman’s ‘conclusions that the standard of care was met.’ ” These issues concerned: (1) a lack of specificity as to the matters and records upon which Dr. Akopian relied in reaching his opinions (see Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742 [medical expert’s opinion based upon medical records not before the court had “no evidentiary value”]); and (2) the unsupported nature of the opinions, Dr. Akopian’s declaration being described by the trial court as “appear[ing] to consist of brief, generic, conclusory statements that could have been written by a lawyer or layperson rather than a medical expert.” (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [“purely conclusory” opinion of expert “has no evidentiary value”].) While it appears to this court that the trial court’s concerns regarding Dr. Akopian’s opinions and support therefor expressed in his declaration are sound, because we find that the court did not abuse its discretion in holding that Rouse
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During oral argument, Ms. Rouse discussed the very significant challenges she has faced over the past six-plus years relating to the medical circumstances that led to the surgery and to the surgery itself that was commenced in December 2019 but not successfully concluded. Ms. Rouse also gave an account of postsurgical matters that are not part of the record, such as: her long-term physical struggles after her release from the hospital in late December 2019; her stated inability to obtain answers from Dr. Chung; issues she experienced with her attorney in this litigation; and her recent, successful surgery to address her medical condition. This court has heard these comments. It appreciates and acknowledges the physical and emotional hardships Ms. Rouse has endured over the years. This opinion does not question the challenges that Ms. Rouse has faced; rather, it reflects the limited legal questions before us and our adherence to the legal principles we are bound to follow.
III. DISPOSITION
The November 7, 2024 judgment entered on the prior order granting defendants’
motion for summary judgment is affirmed. The parties shall bear their own respective costs on appeal.
failed to establish her expert’s competence to testify, we need not address this additional basis for granting summary judgment. (See Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1071 [“an appellate court generally will not address an issue unnecessary to the resolution of the appeal”].)
WILSON, J.
WE CONCUR:
GROVER, Acting P. J.
LIE, J.
Rouse v. Stanford Health Care et al. H052800