Filed 8/12/16 Hays v. Covenant Care La Jolla CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



HELENA HAYS,                                                        D068249

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00103075-CU-PN-CTL)
COVENANT CARE LA JOLLA, LLC,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Reversed and remanded with directions.

         Stephen F. Lopez for Plaintiff and Appellant.

         Giovanniello Law Group, Alexander F. Giovanniello, Karen A. Bocker and

Danielle M. VandenBos for Defendant and Respondent.

         Plaintiff Helena Hays appeals a judgment entered after the trial court granted a

motion for summary judgment filed by defendant Covenant Care La Jolla, LLC, doing

business as La Jolla Nursing and Rehabilitation Center (Center), in her professional

negligence action against it. On appeal, Hays contends: (1) Center did not meet its initial
burden of production to make a prima facie showing she could not establish a

professional negligence cause of action against it; and (2) if it did meet that burden, the

trial court nevertheless erred by sustaining Center's evidentiary objections to the

declaration of her expert and concluding there were no triable issues of material fact that

would preclude summary judgment for Center. Because, as we explain below, the court

erred by sustaining Center's evidentiary objections and concluding there were no triable

issues of material fact on the professional negligence cause of action, we reverse the

summary judgment for Center.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On June 8, 2011, Hays was admitted to Sharp Memorial Hospital (Sharp). She

complained of increasing severity of generalized weakness, nausea, inability to ambulate,

dysuria, suprapubic pain, and a low-grade fever. Sharp staff noted she was malnourished,

weighed 130 pounds, and had lost five percent or more of her weight in the past month.

She had been consuming at least 50 percent fewer calories than usual and felt very

lethargic and weak. She was diagnosed as having a urinary tract infection. She was

given fluids and Rocephin intravenously, insulin, a diabetic diet, physical therapy, and

her usual medications. On June 9, Sharp staff noted Hays had a Stage I pressure ulcer on

her left heel, and her gluteal cleft and perianal area were red and denuded.

       On June 11, Hays was discharged by Sharp and admitted to Center. Center staff

found she had a Stage III wound to her coccyx, a Stage I wound to her left heel, a Stage I

wound to her right buttock, and a Stage I wound to her left buttock. Center staff

implemented orders for physical therapy, occupational therapy, a podiatry evaluation, and

                                              2
a nutritional screening. From June 11 through June 14, she consumed 50 to 75 percent of

her meals and lost weight. By July 5, her coccyx wound had increased in size despite the

staff's treatment and weekly monitoring/measuring of it. The staff thereafter obtained a

wound culture and began to change her dressings twice a day. By July 11, her coccyx

wound had further increased in size and depth. The prior wound culture showed it was

infected and a physician prescribed Levaquin for her. Hays continued to have poor

nutritional intake. On July 13, Hays was examined by a wound care physician, who

noted that she was currently using a low air loss mattress but did not like to lie on her

side because of chronic back pain. The physician performed a debridement of her

sacrococcygeal pressure ulcer. On July 18, Center staff found Hays's coccyx wound had

progressed to a Stage IV wound. On July 20, a gastronomy tube was surgically placed in

her at Sharp and tube feedings were thereafter implemented by Center staff.

       On July 22, Center staff and Hays's daughter agreed Hays would benefit from

more aggressive treatment at Kindred Hospital San Diego (Kindred). On that day, Hays

was discharged from Center and admitted to Kindred for continuing wound care.

Center's discharge diagnoses included a failure to thrive, dysphagia, urinary tract

infection, and a decubitus (or pressure) ulcer. Despite Kindred's treatment methods,

Hays's Stage IV coccyx wound increased in size from the time of her admission to the

time of her discharge.

       On August 28, 2012, Hays filed the instant action against Center and Sharp,

alleging causes of action against Center for professional negligence and elder abuse. Her

professional negligence cause of action alleged that she was admitted to Center with a

                                              3
Stage III decubitus ulcer on her coccyx/sacral area and Center neglected to care for her

ulcers in a proper manner, including a failure to place her on a preventive mattress,

failure to provide immediate and expert wound care treatments to prevent progression of

multiple decubitus sites, and failure to provide proper dietician services. She alleged that

Center's failure to use the degree of care and skill ordinarily used by medical providers in

San Diego County caused her to become gravely ill and develop more serious decubitus

ulcers that resulted in extreme pain and suffering and economic harm.

       Center filed a motion for summary judgment or, in the alternative, summary

adjudication of issues, arguing Hays could not establish either her professional

negligence cause of action or elder abuse cause of action against it. In support of its

motion, Center submitted a declaration of Karen Josephson, M.D. (a gerontology expert),

and a separate statement of undisputed material facts, and lodged with the court certain

exhibits, including documents that Josephson reviewed in forming her expert opinions.

       Hays opposed Center's motion and submitted in support of her opposition a

response to its separate statement and a declaration of Luis Navazo, M.D., a wound care

expert. She argued Center had not met its burden to show she could not establish her

professional negligence and elder abuse causes of action and, in any event, there were

triable issues of material fact that precluded summary judgment for Center because the

opinions of Center's expert (Josephson) and her expert (Navazo) conflicted on the issue

of Center's alleged breach of the applicable standard of care.

       Center replied to Hays's opposition, arguing the declaration of Hays's expert,

Navazo, lacked any evidentiary value because Hays did not present the evidence that he

                                             4
reviewed in forming his opinions and therefore his declaration lacked a proper

foundation. Center also filed 14 evidentiary objections to portions of Navazo's

declaration.

       On November 10, 2014, after hearing arguments of counsel one month earlier, the

trial court issued an order granting Center's motion for summary judgment. In so doing,

the court first sustained in part and overruled in part Center's evidentiary objections to

Navazo's declaration.1 The court then concluded Center had met its burden to show

Hays could not establish the essential elements of her two causes of action against it and

that Hays did not show there were triable issues of material fact regarding those essential

elements. The court concluded Hays had not shown there was a triable issue of material

fact on the question of whether Center's conduct fell below the applicable standard of

care. It further concluded the opinions of Hays's expert (Navazo) were conclusory,

lacked adequate foundation, and did not establish the appropriate causal connection to

Center's alleged conduct.2 On December 1, 2014, the trial court entered a judgment of

dismissal for Center. Hays timely filed a notice of appeal.



1      The trial court expressly overruled Center's objection No. 1 and expressly
sustained its objection Nos. 2 through 8. By not expressly sustaining Center's objection
Nos. 9 through 14, we presume the court implicitly overruled those objections.

2      On November 25, 2014, Hays filed a motion for reconsideration of the trial court's
order granting Center's motion for summary judgment. On April 24, 2015, the court
issued an order denying her motion for reconsideration, concluding that its prior entry of
judgment for Center (on December 1, 2014) deprived it of jurisdiction to reconsider its
order granting Center's motion for summary judgment. Because Hays does not
substantively challenge on appeal the court's order denying her motion for
reconsideration, we do not address whether the court erred in denying that motion.
                                              5
                                        DISCUSSION

                                                I

                          Summary Judgment Standard of Review

       "On appeal after a motion for summary judgment has been granted, we review the

record de novo, considering all the evidence set forth in the moving and opposition

papers except that to which objections have been made and sustained." (Guz v. Bechtel

National, Inc. (2000) 24 Cal.4th 317, 334; see Saelzler v. Advanced Group 400 (2001) 25

Cal.4th 763, 767.) "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).)

       Aguilar clarified the standards that apply to summary judgment motions under

Code of Civil Procedure section 437c.3 (Aguilar, supra, 25 Cal.4th at pp. 843-857.)

Generally, if all the papers submitted by the parties show there is no triable issue of

material fact and the " 'moving party is entitled to a judgment as a matter of law,' " the

court must grant the motion for summary judgment. (Aguilar, at p. 843, quoting § 437c,

subd. (c).) Section 437c, subdivision (p)(2), states:

           "A defendant . . . has met his or her burden of showing that a cause
           of action has no merit if that party has shown that one or more
           elements of the cause of action, even if not separately pleaded,
           cannot be established, or that there is a complete defense to that
           cause of action. Once the defendant . . . has met that burden, the
           burden shifts to the plaintiff . . . to show that a triable issue of one or


3      All statutory references are to the Code of Civil Procedure.
                                                6
          more material facts exists as to that cause of action or a defense
          thereto. The plaintiff . . . may not rely upon the mere allegations or
          denials of its pleadings to show that a triable issue of material fact
          exists but, instead, shall set forth the specific facts showing that a
          triable issue of material fact exists as to that cause of action or a
          defense thereto."

Aguilar made the following observations:

          "First, and generally, from 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. . . . There is a triable issue of material
          fact 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. . . .

          "Second, and generally, the party moving for summary judgment
          bears an initial burden of production to make a prima facie showing
          of the nonexistence of any triable issue of material fact; if he carries
          his burden of production, he causes a shift, and the opposing party is
          then subjected to a burden of production of his own to make a prima
          facie showing of the existence of a triable issue of material fact. . . .
          A prima facie showing is one that is sufficient to support the position
          of the party in question. . . .

          "Third, and generally, how the parties moving for, and opposing,
          summary judgment may each carry their burden of persuasion and/or
          production depends on which would bear what burden of proof at
          trial. . . . [I]f a defendant moves for summary judgment against . . . a
          plaintiff [who would bear the burden of proof by a preponderance of
          the evidence at trial], [the defendant] must present evidence that
          would require a reasonable trier of fact not to find any underlying
          material fact more likely than not--otherwise, he would not be
          entitled to judgment as a matter of law, but would have to present
          his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at
          pp. 850-851, fns. omitted.)

Aguilar stated:

          "To speak broadly, all of the foregoing discussion of summary
          judgment law in this state, like that of its federal counterpart, may be
          reduced to, and justified by, a single proposition: If a party moving

                                             7
           for summary judgment in any action . . . would prevail at trial
           without submission of any issue of material fact to a trier of fact for
           determination, then he should prevail on summary judgment. In
           such a case, . . . the 'court should grant' the motion 'and avoid a . . .
           trial' rendered 'useless' by nonsuit or directed verdict or similar
           device." (Aguilar, supra, 25 Cal.4th at p. 855, italics added.)

       "[E]ven though the court may not weigh the plaintiff's evidence or inferences

against the defendants' as though it were sitting as the trier of fact, it must nevertheless

determine what any evidence or inference could show or imply to a reasonable trier of

fact. . . . In so doing, it does not decide on any finding of its own, but simply decides

what finding such a trier of fact could make for itself." (Aguilar, supra, 25 Cal.4th at

p. 856.) "[I]f the court determines that all of the evidence presented by the plaintiff, and

all of the inferences drawn therefrom, show and imply [the ultimate fact] only as likely as

[not] or even less likely, it must then grant the defendants' motion for summary judgment,

even apart from any evidence presented by the defendants or any inferences drawn

therefrom, because a reasonable trier of fact could not find for the plaintiff. Under such

circumstances, the [factual] issue is not triable—that is, it may not be submitted to a trier

of fact for determination in favor of either the plaintiff or the defendants, but must be

taken from the trier of fact and resolved by the court itself in the defendants' favor and

against the plaintiff." (Id. at p. 857, fn. omitted.)

       "On appeal, we exercise 'an independent assessment of the correctness of the trial

court's ruling, applying the same legal standard as the trial court in determining whether

there are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers


                                                8
before the trial court when it considered the motion, and not documents filed later.

[Citation.] Moreover, we construe the moving party's affidavits strictly, construe the

opponent's affidavits liberally, and resolve doubts about the propriety of granting the

motion in favor of the party opposing it.' " (Seo v. All-Makes Overhead Doors (2002) 97

Cal.App.4th 1193, 1201-1202.) Although we generally review de novo, or

independently, a trial court's ruling on a motion for summary judgment, we apply the

abuse of discretion standard in reviewing the trial court's rulings on a party's evidentiary

objections. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Powell); Carnes v.

Superior Court (2005) 126 Cal.App.4th 688, 694.)

                                              II

                 Professional Negligence Cause of Action Against Center

       Hays contends the trial court erred by concluding Center met its initial burden of

production to make a prima facie case showing she could not establish a cause of action

for professional negligence against it. She also contends that if Center met its burden of

production, the court nevertheless erred by sustaining Center's evidentiary objections to

portions of Navazo's declaration and concluding there were no triable issues of material

fact that precluded summary judgment for Center.4



4      During oral argument below, Hays's counsel, in effect, conceded the trial court
correctly granted Center's motion for summary adjudication of her cause of action for
elder abuse, stating: "I wouldn't disagree with the summary adjudication on the elder
abuse [cause of action]." Furthermore, on appeal Hays does not present any substantive
argument challenging the court's grant of Center's motion for summary adjudication on
her elder abuse cause of action. Because Hays has, in effect, waived or forfeited any
challenge to that specific ruling, we affirm that part of the trial court's order.
                                              9
                                             A

       Center's initial burden of production; Josephson's declaration. In moving for

summary judgment or, in the alternative, summary adjudication of issues, Center argued

Hays could not establish her professional negligence cause of action against it. In

support of its motion, Center submitted a declaration of its expert, Josephson, and lodged

with the court certain exhibits, including those documents Josephson reviewed in forming

her expert opinions.

       In her declaration in support of Center's motion, Josephson stated that in forming

her opinions she reviewed Hays's complaint and her medical records maintained by Sharp

for her admission from June 8, 2011, through June 14, 2011, by Center, and by Kindred,

which records were included in Exhibit 10. Center lodged with the trial court certain

exhibits, including Exhibit 10, which it described as "[a] compact disc with true and

correct copies of all medical records[,] [d]epositions, and other documents reviewed by

[Josephson]" and itemized 16 categories of documents that she reviewed (e.g., Hays's

medical records from Sharp, Center, and Paradise Valley Hospital). In her declaration,

Josephson stated: "Based upon my review of the records, it is my opinion, to a reasonable

degree of medical probability[,] that [Center] staff did not cause [Hays] to develop a

pressure ulcer on her heels or coccyx, or cause the coccyx wound to progress to a Stage

IV classification. It is my opinion, to a reasonable degree of medical probability[,] that

[Center] maintained the standard of care at all times in its treatment of [Hays], did not

abuse or neglect her, and did not cause her to suffer any injury." Josephson stated she

based her opinions, in part, on facts found in Hays's medical records and described in

                                             10
detail those underlying facts. Josephson noted that on Hays's admission to Sharp on June

8, 2011, she was malnourished, had a decreased caloric intake, and had uncontrolled

diabetes. She also noted that on Hays's discharge from Sharp and admission to Center,

Hays had an open Stage III coccyx wound. Josephson stated that Center's medical

records showed Center's nursing staff complied with physician orders for treatment of

Hays's coccyx wound by cleaning it, applying an ointment, and covering it with a

dressing daily or as needed, and by repositioning her every two hours and placing her on

a low air loss mattress. She also noted Center's efforts to improve Hays's nutrition. She

further noted Center's taking of a culture of Hays's coccyx wound and scheduling a

consultation with a wound specialist for July 13, 2011. Josephson noted that despite

Center's efforts, Hays's coccyx wound progressed to a Stage IV wound and she was

discharged by Center and admitted to Kindred on July 22, 2011.

       Josephson stated: "It is my opinion, to a reasonable degree of medical probability,

that nothing [Center] staff did or did not do caused [Hays] to develop what ultimately

became a Stage IV pressure ulcer on her sacrum. Rather, it is my opinion that the wound

developed prior to her admission to [Center] due to her compromised condition,

consisting of infection, decreased oral intake, low albumin levels, high blood sugar levels

and immobility. More specifically, [Hays] suffered from comorbidities such as diabetes

mellitus and peripheral arterial disease. In addition, she had significant barriers to wound

healing such as her age, poor nutritional intake, and discomfort with repositioning, such

that she remained malnourished and needed placement of a gastrostomy tube for

nutrition. Consequently, [Hays] had a poor prognosis at the time of her transfer to

                                            11
[Center]. Further, as a result of these conditions, [Hays] developed poor circulation

and[,] thus, the downward progression of her coccyx pressure ulcer became inevitable,

despite appropriate and/or optimal treatment by [Center] staff."

       She further stated: "In my opinion, [Center] provided appropriate interventions

and wound treatments as warranted by [Hays's] medical condition. . . . [¶] It is my

opinion, to a reasonable degree of medical probability[,] that [Center] maintained the

standard of care at all times in its treatment and care of [Hays]. Additionally, I find no

evidence to support [her] claim that [Center] caused [her] to develop a Stage IV sacral

ulcer during her hospitalization or for any of [her] wounds to deteriorate."

       Based on our independent review of the record, we conclude Center, by submitting

Josephson's declaration and lodging with the trial court the documents on which she, in

part, based her medical opinions, met its initial burden of production to make a prima

facie showing that Hays could not establish her professional negligence cause of action.

(§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.) To prevail on a

professional negligence cause of action, a plaintiff must prove that (1) the defendant

owed the plaintiff a legal duty of care; (2) the defendant breached that duty; (3) that

breach was a legal or proximate cause of the plaintiff's injury; and (4) the plaintiff

suffered damages from the defendant's negligence. (Powell, supra, 151 Cal.App.4th at

p. 122.) Contrary to Hays's assertion, Josephson's declaration provided sufficient

evidence to make a prima facie showing that Hays could not establish the elements of

breach of duty and causation. She stated her expert opinion that Center maintained the

standard of care at all times in its treatment of Hays and did not cause her to suffer any

                                             12
injury. Citing other reasons for the progression of Hays's coccyx ulcer to a Stage IV

wound, Josephson stated that nothing Center did or did not do caused Hays to develop

that Stage IV pressure ulcer. Center carried its burden of production of evidence to make

a prima facie showing that Hays could not establish the elements of breach of duty and

causation and thus her professional negligence cause of action. (Aguilar, supra, 25

Cal.4th at pp. 850-851.)

                                            B

       Hays's burden of production; Navazo's declaration. Because Center met its

burden of production to make a prima facie showing that Hays could not establish the

elements of her professional negligence cause of action, the burden shifted to Hays to

produce evidence to make a prima facie showing that there exists a triable issue of

material fact that precludes summary judgment for Center. (§ 437c, subd. (p)(2);

Aguilar, supra, 25 Cal.4th at pp. 850-851.) In opposing Center's motion for summary

judgment, Hays argued there were triable issues of material fact that precluded summary

judgment for Center because the opinions of Center's expert (Josephson) and her expert

(Navazo) conflicted on the issue of Center's alleged breach of the applicable standard of

care. Hays submitted Navazo's declaration, in which he stated:

          "In forming my opinions in this case, I have reviewed the available
          records of [Sharp] and [Center] and Paradise Valley Hospital
          regarding [Hays's] care and treatment commencing in June 2011. I
          have also reviewed the declaration of [Josephson] submitted by
          [Center]."

He further stated his opinions were "based upon a number of factors based upon my

review of the available records."

                                            13
       Navazo stated:

          "Contrary to the opinions of [Josephson], I am of the opinion that the
          actions of the medical staff and personnel of [Center] for [Hays] fell
          below the applicable standard of care for such treatment in terms of
          wound prevention and care. It is further my opinion to a reasonable
          degree of medical probability that while the care provided to [Hays]
          did not initially cause her decubitus [or pressure] ulcers, the care
          after her admission did cause her decubitus ulcer, particularly on
          her coccyx[,] to progress to a stage IV ulcer, requiring extensive
          care and treatment and pain and suffering that could have been
          prevented had [Hays] been properly cared for by the staff and
          personnel at [Center]." (Italics added.)

He explained that his review of Hays's medical records showed she arrived at Center in

relatively good condition regarding her skin integrity with a Braden score of 18, which

would require watching but did not indicate any significant problems.5 He also stated

that, contrary to Josephson's assertion, Hays's diabetes appeared to be generally under

control, citing records showing 19 of 19 fasting blood sugar tests were less than or equal

to 151 during the first 19 days following her admission to Center. He also stated that on

her admission to Center Hays was adequately nourished and her weight was appropriate.

       Navazo stated his opinion that "Hays['s] skin integrity was manageable during the

first two weeks following her admission and there was no reason other than a lack of a

proper plan and the failure to properly care for her in terms of skin integrity that resulted

in the decubitus ulcer on her coccyx progressing to a stage IV ulcer." (Italics added.)


5       Navazo described the "Braden Scale" that is used to assess a patient's skin
integrity as consisting of six categories: sensory perception, moisture, activity, mobility,
nutrition, and friction/shear. The total score of those six categories can range from 6 to
23, with a lower score showing a higher risk that would indicate the use of (presumably
greater) intervention strategies.

                                             14
Noting that Hays's overall condition worsened in terms of nutrition, weight loss, and

dehydration and her Braden score declined to as low as 12 within 21 days of her

admission to Center, Navazo stated: "In my opinion this could have been prevented . . .

had a proper plan of care and monitoring been prepared and implemented. The records

show no such plan. The records contain no mention of [a] physician at the facility

documenting a plan of care for the ulcer. The attempt to address [Hays's] declining

nutritional status and dehydration, in my opinion[,] came too late in her care, resulting in

her decline while at [Center]. This conduct amounted to neglect in her care in my

opinion and a lack of care in my opinion." (Italics added.)

       Hays asserts on appeal, and Center does not appear to dispute, that, had the trial

court not excluded portions of Navazo's declaration, his declaration would have been

sufficient to show there were triable issues of material fact on the elements of breach of

duty and causation that would preclude summary judgment for Center. Navazo stated his

opinions that Center's care of Hays was below the applicable standard of care regarding

wound prevention and care and that its improper care caused her decubitus or pressure

ulcer on her coccyx to progress to a Stage IV ulcer, resulting in extensive care and

treatment and pain and suffering that could have been prevented. He further stated his

opinion that "there was no reason other than a lack of a proper plan and the failure to

properly care for her in terms of skin integrity that resulted in the decubitus ulcer on her

coccyx progressing to a stage IV ulcer." He stated that his review of Center's records did

not show a proper plan of care and monitoring been prepared and implemented by Center

for Hays.

                                             15
       Those expert opinions stated in Navazo's declaration were sufficient evidence, had

the trial court not excluded portions of his declaration, to contradict Josephson's opinions,

discussed above, and thereby satisfy Hays's burden to produce evidence showing there

were triable issues of material fact on the elements of breach of duty and causation that

would preclude summary adjudication of her professional negligence cause of action and

summary judgment for Center. Therefore, as Hays asserts, the crux of this appeal is

whether the trial court erred by excluding portions of Navazo's declaration.

                                             C

       Trial court's exclusion of Navazo's declaration. Hays asserts the trial court abused

its discretion by sustaining in part Center's evidentiary objections to portions of Navazo's

declaration and concluding that the lack of his expert opinions precluded her from

showing there was a triable issue of material fact that precluded summary judgment for

Center. As we explain below, we agree with Hays.

       In reply to Hays's opposition to its motion for summary judgment, Center argued

Navazo's declaration lacked any evidentiary value because he failed to present the

evidence he reviewed in forming his opinions and therefore his declaration lacked a

proper foundation. It filed 14 evidentiary objections to Navazo's declaration on grounds

of lack of foundation. Center argued the records to which Navazo referred were not

properly before the court and therefore his declaration lacked a proper foundation. In its

order granting Center's motion for summary judgment, the trial court first sustained in

part its evidentiary objections to Navazo's declaration. It sustained Center's objections to

the following portions of Navazo's declaration: (1) his statement he had reviewed the

                                             16
available records of Sharp, Center, and Paradise Valley Hospital regarding Hays's care

and treatment; (2) his opinion that Center's actions fell below the applicable standard of

care regarding wound prevention and care; (3) his opinion that Center's improper care

caused her coccyx ulcer to progress to a Stage IV ulcer; and (4) his statement that Hays's

skin integrity was in relatively good condition on her admission to Center. However, the

court did not expressly sustain, and therefore implicitly overruled, Center's objections to

the following portions of Navazo's declaration: (1) his opinion there was no reason other

than a lack of a proper plan and the failure to properly care for Hays that resulted in the

progression of her decubitus ulcer on her coccyx to a Stage IV ulcer; (2) his opinion that

progression to a Stage IV ulcer could have been prevented had a proper plan of care and

monitoring been prepared and implemented by Center; (3) his opinion that Center's

attempt to address her declining nutritional status and dehydration came too late,

resulting in her decline while at Center; and (4) his opinion that Center's conduct

amounted to neglect in her care and a lack of care.

       Hays asserts the trial court abused its discretion by sustaining Center's objections

to portions of Navazo's declaration, as discussed above, on the ground that there was a

lack of a proper foundation for his statements and opinions. Center argued below that

Navazo's declaration should be excluded as evidence because Hays "failed to furnish the

evidence reviewed by her expert." It argued Navazo's statement that he reviewed

available information, including medical records of Sharp, Center, and Paradise Valley

Hospital, lacked a proper foundation because those records were not properly before the

court. It further argued that Navazo's opinions were therefore without evidentiary

                                             17
support and should be disregarded. In sustaining Center's objections to portions of

Navazo's declaration, the trial court presumably agreed with Center's arguments and

found his declaration lacked a proper foundation because Hays had not submitted copies

of the records that he reviewed in forming his opinions. However, in so doing, the court

abused its discretion.

       In Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499

(Shugart), the defendant physician moved for summary judgment of the medical

negligence cause of action against him and submitted copies of plaintiff's medical records

and a declaration of an expert stating her opinion that the physician's care met the

standard of care and did not cause the plaintiff's injuries. (Id. at p. 503.) In opposition to

the motion, the plaintiff submitted a declaration of an expert stating his opinion that the

physician committed acts below the standard of care and those acts contributed to her

injuries. (Id. at pp. 503-504.) The trial court granted the physician's motion for summary

judgment, concluding the declaration of the plaintiff's expert was deficient and lacking

evidentiary value because he failed to refer to the materials on which he relied in forming

his opinions. (Id. at p. 504.) The court reasoned that the declaration of the plaintiff's

expert had no evidentiary value because he did not reference or attach particular materials

that he consulted and reviewed in rendering his opinion and the plaintiff did not set forth

any medical records. (Id. at p. 505.)

       On appeal, Shugart concluded the trial court erred by finding the declaration of the

plaintiff's expert lacked foundation and was inadmissible. (Shugart, supra, 199

Cal.App.4th at p. 505.) Her expert stated in his declaration that he had reviewed " 'the

                                              18
medical records, deposition transcript, and declarations of [plaintiff].' " (Ibid.) His

opinions were explained in part by references to notations in her medical records that

were already before the court in support of the defendant physician's moving papers. (Id.

at pp. 505-506.) Accordingly, Shugart concluded "the foundational facts and medical

records on which [plaintiff's expert] relied as stated in his declaration were before the

court to support his expert opinion." (Id. at p. 506.) It stated that Garibay v. Hemmat

(2008) 161 Cal.App.4th 735, on which the defendant physician relied, "does not require a

party opposing summary judgment to file duplicate copies of the medical records on

which the opposing expert relied in forming a disputed expert opinion if they are already

before the court in support of the motion." (Shugart, at p. 506.) The court further

concluded that although the declaration of the plaintiff's expert was "not a model of

specificity," it was sufficient to raise triable issues of fact regarding whether the

defendant physician's care of the plaintiff met the standard of care in the medical

community and whether that care caused her alleged damages. (Ibid.) Therefore, it

reversed the summary judgment in favor of the defendant physician. (Id. at p. 509.)

       We conclude that the instant case is similar to Shugart in that Center, in support of

its motion for summary judgment, lodged with the trial court extensive documents,

including Hays's medical records created during her admissions at Sharp, Center, and

Paradise Valley Hospital. In opposing Center's motion, Hays submitted Navazo's

declaration in which he stated he reviewed the available records of Sharp, Center, and

Paradise Valley Hospital, as well as Josephson's declaration, in forming his opinions.

Like in Shugart, Navazo did not attach to his declaration copies of those records, nor did

                                              19
Hays separately lodge with the court copies of those records. However, because those

records were already before the court when Center lodged them with the court, Hays was

not required to separately lodge them with the court or attach them to Navazo's

declaration to provide a sufficient foundational basis for his expert opinions. (Shugart,

supra, 199 Cal.App.4th at p. 506.)

       Furthermore, to the extent Center argues Navazo was required to cite to specific

pages or dates of those records as support for each statement of fact or opinion, we

conclude that the liberal rule of construction of papers opposing a motion for summary

judgment applies to preclude a requirement that the opposing party's expert set forth "in

excruciating detail" the factual basis for opinions stated in his or her declaration.

(Hanson v. Grode (1999) 76 Cal.App.4th 601, 608, fn. 6 (Hanson).) In Hanson, the court

noted the declaration of the plaintiff's expert in opposition to the defendants' motion for

summary judgment stated the plaintiff "suffered nerve damage during the surgery and

that the care defendants provided was a cause of his injuries. Although the style of the

[expert's] declaration is at times a bit obtuse, [the plaintiff] is entitled to all favorable

inferences that may reasonably be derived from that declaration. These inferences

include a reading of the declaration to state that the nerve damage [the plaintiff] suffered

during surgery was caused by the conduct of [the] defendants, which conduct fell below

the applicable standard of care. Nothing more was needed." (Id. at pp. 607-608, italics

added, fn. omitted.) Therefore, unlike declarations of experts in support of defendants'

motions for summary judgment, declarations of plaintiffs' experts in opposition to

motions for summary judgment do not have to be detailed and are entitled to all favorable

                                                20
inferences that may be reasonably made from those declarations. (Powell, supra, 151

Cal.App.4th at p. 125; Hanson, at p. 607.) Based on our review of the record in this case,

we conclude the statements and opinions set forth in Navazo's declaration were

sufficiently certain and supported by references to pertinent records as to create triable

issues of material fact on the elements of breach of duty and causation on Hays's

professional negligence cause of action. Center does not persuade us to reach a contrary

conclusion.

                                             D

       Navazo's purported conclusory opinions. In sustaining in part Center's objections

to portions of Navazo's declaration, the trial court also apparently concluded his opinions

were conclusory. Because it did not elaborate on what specific deficiencies it perceived,

we presume it believed Navazo's declaration did not set forth a sufficient explanation of

the facts supporting his opinions that Center's care of Hays was below the applicable

standard of care and caused her damages. However, our independent review of his

declaration shows his opinions were sufficiently explained based in part on evidence he

found in Hays's medical records.

       In his declaration, Navazo stated that in forming his opinions he reviewed Hays's

medical records maintained by Sharp, Center, and Paradise Valley Hospital, as well as

Josephson's declaration. His review of her medical records showed she arrived at Center

in relatively good condition regarding her skin integrity with a Braden score of 18, which

would require watching but did not indicate any significant problems. He also stated that

Hays's diabetes appeared to be generally under control, citing records showing 19 of 19

                                             21
fasting blood sugar tests were less than or equal to 151 during the first 19 days following

her admission to Center. He also stated that on her admission to Center she was

adequately nourished and her weight was appropriate.

       Navazo then stated his opinion that "Hays['s] skin integrity was manageable

during the first two weeks following her admission and there was no reason other than a

lack of a proper plan and the failure to properly care for her in terms of skin integrity

that resulted in the decubitus ulcer on her coccyx progressing to a stage IV ulcer."

(Italics added.) He noted that Hays's overall condition worsened in terms of nutrition,

weight loss, and dehydration and her Braden score declined to as low as 12 within 21

days of her admission to Center. Navazo stated: "In my opinion this could have been

prevented . . . had a proper plan of care and monitoring been prepared and implemented.

The records show no such plan. The records contain no mention of [a] physician at the

facility documenting a plan of care for the ulcer. The attempt to address [Hays's]

declining nutritional status and dehydration, in my opinion[,] came too late in her care,

resulting in her decline while at [Center]. This conduct amounted to neglect in her care

in my opinion and a lack of care in my opinion." (Italics added.) He stated his opinions

that Center's care of Hays "fell below the applicable standard of care for such treatment in

terms of wound prevention and care" and that its care "cause[d] her decubitus ulcer . . .

on her coccyx to progress to a stage IV ulcer, requiring extensive care and treatment and

pain and suffering that could have been prevented had [she] been properly cared for" by

Center.



                                             22
       As stated above, the liberal rule of construction of papers opposing a motion for

summary judgment applies to preclude a requirement that the opposing party's expert set

forth "in excruciating detail" the factual basis for opinions stated in his or her declaration.

(Hanson, supra, 76 Cal.App.4th at p. 608, fn. 6.) Unlike declarations of experts in

support of defendants' motions for summary judgment, declarations of plaintiffs' experts

in opposition to motions for summary judgment do not have to be detailed and are

entitled to all favorable inferences that may be reasonably made from those declarations.

(Powell, supra, 151 Cal.App.4th at p. 125; Hanson, at p. 607.)

       Liberally construing Navazo's declaration and making all reasonable inferences in

support of Hays's opposition to Center's motion for summary judgment, we conclude

Navazo's declaration sufficiently explained the reasons for his opinions by citing or

describing certain evidence in her medical records. He noted her records showed her skin

integrity and overall condition worsened in terms of nutrition, weight loss, and

dehydration within 21 days of her admission to Center. Based on his review of her

medical records, he could see no reason other than Center's lack of a proper plan and the

failure to properly care for her in terms of skin integrity that resulted in the decubitus

ulcer on her coccyx progressing to a stage IV ulcer. Her records did not show Center

had, or implemented, a proper plan of care and monitoring for her. Her records did not

show a physician at the Center created a plan of care for her decubitus ulcer on her

coccyx. Also, her records showed Center's attempt to address her declining nutritional

status and dehydration was too late to prevent the progression of that ulcer to a Stage IV

ulcer. Liberally construing Navazo's declaration in favor of Hays's opposition to Center's

                                              23
motion for summary judgment, we conclude his declaration sufficiently explained his

reasons for his opinions that Center's care fell below the applicable standard of care and

caused her decubitus ulcer on her coccyx to progress to a Stage IV ulcer. (Cf. Shugart,

supra, 199 Cal.App.4th at pp. 505-506; Powell, supra, 151 Cal.App.4th at pp. 128-130;

Hanson, supra, 76 Cal.App.4th at pp. 607-608.) Although more specificity and extensive

reasoning in his declaration would have been preferable, we cannot conclude his

declaration was inadmissible as conclusory. (Cf. Jennifer C. v. Los Angeles Unified

School Dist. (2008) 168 Cal.App.4th 1320, 1333 [opinions stated in declaration of

plaintiff's expert were adequately supported by reasoned explanation and were therefore

not "conclusory"].) Instead, Navazo's declaration was sufficient to meet Hays's burden of

production to make a prima facie showing that there are triable issues of material fact on

the elements of breach of duty and causation of the professional negligence cause of

action. Accordingly, the trial court erred by sustaining Center's objections to Navazo's

declaration as conclusory and granting its motions for summary adjudication on Hays's

professional negligence cause of action and for summary judgment.

                                            III

                        Elder Abuse Cause of Action Against Center

       Hays does not substantively challenge on appeal the trial court's grant of Center's

motion for summary adjudication of her elder abuse cause of action. We need not, and

do not, address whether the court erred by granting summary adjudication for Center on

that cause of action.



                                            24
                                     DISPOSITION

      The judgment is reversed and the matter is remanded to the trial court with

directions to vacate its order granting the motion for summary judgment and enter a new

order granting the motion for summary adjudication of the elder abuse cause of action

against Center and denying the motion for summary adjudication of the professional

negligence cause of action against Center. Hays shall recover her costs on appeal.




                                                                         McDONALD, J.

WE CONCUR:



HALLER, Acting P. J.



AARON, J.




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