Filed 1/13/15 Hooks v. City of Los Angeles CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


ALVIN HOOKS,                                                         B248526

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC449489)
         v.

CITY OF LOS ANGELES,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard E. Rico, Judge. Affirmed.


         Mason & Associates, Reginald P. Mason; Law Office of Robert M. Ball and
Robert M. Ball for Plaintiff and Appellant.


         Michael N. Feuer, City Attorney, Amy Jo Field and Lisa S. Berger, Deputy City
Attorneys, for Defendant and Respondent.




                                                     **********
       The family of Stephanie Hooks sued the City of Los Angeles (City) for wrongful
death, claiming that paramedics were negligent and that the negligence caused her
untimely death. The trial court granted judgment of nonsuit, finding no evidence of the
breach of a standard of care, gross negligence, or causation. Mrs. Hooks’s husband Alvin
Hooks appeals from the judgment.1 We affirm.
                              FACTS AND PROCEDURE
       On February 21, 2009, Stephanie Hooks (Mrs. Hooks) was experiencing shortness
of breath. Her daughter called 911 to summon aid. The requested ambulance was
overdue at the Hooks residence, and members of the family described Mrs. Hooks’s
shortness of breath over the phone with a 911 dispatcher. The family also expressed
frustration that it was taking the ambulance so long to arrive. The dispatcher repeated
that the ambulance was on its way. When paramedics arrived, they immediately asked
Alvin Hooks about her health. Mrs. Hooks told the paramedics that she could not
breathe, and she appeared to be gasping for air.
       Paramedics did not administer oxygen. Although they took Mrs. Hooks’s blood
pressure, they did not administer other tests including an electrocardiogram (EKG) and
pulse oximeter. Paramedics dropped Mrs. Hooks as they carried her out of her house.
Paramedics transported her to a hospital, where two days later Mrs. Hooks was declared
brain dead.
       Dr. Randy Hawkins, a physician licensed in internal medicine and pulmonary and
critical care testified for appellant. Dr. Hawkins had practiced for 27 years, and had
treated hundreds of pulmonary embolism cases. Pulmonary embolisms are generally
caused by blood clots that block circulation of blood through the lungs. Dr. Hawkins
reviewed the 911 call, the paramedics’ report and Mrs. Hooks’s medical records after she
was admitted to the hospital on February 21, 2009. Based on his review of those records,
he concluded that “she was quite ill.” According to Dr. Hawkins, Mrs. Hooks was in



1     This court issued an order July 31, 2013, reinstating the appeal as to Alvin Hooks
only. Mrs. Hooks’s mother and daughter were also plaintiffs in the trial court.

                                             2
“severe respiratory distress” at the time of the 911 call. The respiration rate marked on
the paramedics’ report was normal and the blood pressure was near normal. While the
pulse also could have been normal, Dr. Hawkins could not assess it because he had no
EKG results. But Dr. Hawkins believed that the paramedics’ report was inaccurate based
on what he heard on the 911 tape.
       Dr. Hawkins further testified that paramedics did not record Mrs. Hooks’s oxygen
saturation, which would have indicated whether it was necessary to immediately place
her on oxygen. He also testified that “many people are short of breath, but not all have
low oxygen levels.” According to Dr. Hawkins, if a person had difficulty breathing,
oxygen would help and administering fluids may help. Hawkins testified he could not
“get a true indication of [Mrs. Hooks’s] condition” because paramedics had not
completed an EKG or a pulse oximetry reading, which would have identified her oxygen
level. According to him, paramedics should have taken those tests.
       Dr. Hawkins was not permitted to testify regarding whether he believed the
Glascow Coma Scale result of 15 was accurate. He testified that was a test that measured
an individual’s alertness and neurological state. The court concluded that Dr. Hawkins
could not testify as to the accuracy of the result because he was not there when the test
was conducted and he was relying on information not available to the paramedics who
were present.
       Dr. Hawkins opined that Mrs. Hooks’s cause of death was a massive stroke. He
testified that oxygen would have helped a patient that was having difficulty breathing.
The court sustained an objection to a question by appellant’s counsel whether the failure
to administer oxygen contributed to Mrs. Hooks’s death.
       Dr. Hawkins was not permitted to testify as to the paramedics’ standard of care.
On voir dire, Dr. Hawkins acknowledged that he did not know the requirements for
paramedics. Dr. Hawkins testified that he did not know the requirements for becoming a
paramedic. He did not know what subjects a paramedic learned for certification.
Dr. Hawkins did not know the standard of care for completing a paramedic form but
“suspect[ed] it exist[ed].” Dr. Hawkins explained that he was not prepared to testify as


                                             3
an expert on paramedics but was prepared to testify as an expert on pulmonary
embolisms.
       The trial court granted the City’s motion for a nonsuit. The court concluded there
was no evidence the paramedics breached the standard of care, there was no evidence of
gross negligence, and there was no evidence that anything the paramedics did or failed to
do caused Mrs. Hooks’s death. The court subsequently denied appellant’s motion for a
new trial. This appeal followed.
                                       DISCUSSION
       “We review a grant of nonsuit de novo, applying the same standard governing the
trial court. [Citation.] As the Supreme Court has explained, ‘A defendant is entitled to a
nonsuit if the trial court determines that, as a matter of law, the evidence presented by
plaintiff is insufficient to permit a jury to find in his favor. [Citation.] “In determining
whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or
consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff
must be accepted as true and conflicting evidence must be disregarded.”’ [Citation.]
Consequently, the reviewing court ‘will not sustain the judgment “‘unless interpreting the
evidence most favorably to plaintiff’s case and most strongly against the defendant and
resolving all presumptions, inferences and doubts in favor of the plaintiff, a judgment for
the defendant is required as a matter of law.’”’” (Brand v. Hyundai Motor America
(2014) 226 Cal.App.4th 1538, 1544-1545.)
1. Appellant Was Required to Show Gross Negligence
       To hold the City liable for the actions or inactions of the paramedics, appellant
would have to show the paramedics were grossly negligent. Our Supreme Court
concluded that a plaintiff must show bad faith or gross negligence to overcome the
immunity under Health and Safety Code section 1799.107.2 (Eastburn v. Regional Fire



2      Health and Safety Code section 1799.107 provides:
       “(a) The Legislature finds and declares that a threat to the public health and safety
exists whenever there is a need for emergency services and that public entities and

                                              4
Protection Authority (2003) 31 Cal.4th 1175, 1185 (Eastburn).) Gross negligence is
defined as “‘“the want of even scant care or an extreme departure from the ordinary
standard of conduct.”’” (Id. at pp. 1185-1186.)
       Appellant’s principle argument that the dispatch delays constituted “ordinary
negligence” ignores our high court’s ruling in Eastburn. The sole authority appellant
relies upon—Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488—has
been overruled by our high court in Eastburn. Specifically, the Eastburn court explained:
“We think that Ma erred in concluding that Civil Code section 1714, and the common
law principles it codified, were alone sufficient bases for imposing direct tort liability on
a public entity.” (Eastburn, supra, 31 Cal.4th at p. 1183.) “As for a public agency’s
vicarious liability based on its own employee’s act or omission . . . , we believe the Ma



emergency rescue personnel should be encouraged to provide emergency services. To
that end, a qualified immunity from liability shall be provided for public entities and
emergency rescue personnel providing emergency services.
       “(b) Except as provided in Article 1 (commencing with Section 17000) of Chapter
1 of Division 9 of the Vehicle Code, neither a public entity nor emergency rescue
personnel shall be liable for any injury caused by an action taken by the emergency
rescue personnel acting within the scope of their employment to provide emergency
services, unless the action taken was performed in bad faith or in a grossly negligent
manner.
       “(c) For purposes of this section, it shall be presumed that the action taken when
providing emergency services was performed in good faith and without gross negligence.
This presumption shall be one affecting the burden of proof.
        “(d) For purposes of this section, ‘emergency rescue personnel’ means any person
who is an officer, employee, or member of a fire department or fire protection or
firefighting agency of the federal government, the State of California, a city, county, city
and county, district, or other public or municipal corporation or political subdivision of
this state, or of a private fire department, whether that person is a volunteer or partly paid
or fully paid, while he or she is actually engaged in providing emergency services as
defined by subdivision (e).
         “(e) For purposes of this section, ‘emergency services’ includes, but is not limited
to, first aid and medical services, rescue procedures and transportation, or other related
activities necessary to insure the health or safety of a person in imminent peril.”


                                              5
court also erred in concluding that . . . the city and its 911 dispatchers lacked qualified
immunity under Health and Safety Code section 1799.107.” (Id. at p. 1184.)
2. In Addition to Gross Negligence, Appellant Was Required to Show Causation
       It is undisputed that to prove his wrongful death cause of action appellant was
required to show that the breach of a standard of care caused the death of Mrs. Hooks.
(Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78 [elements of cause of action for
negligence include causation].) While appellant identifies several alleged breaches
involving the failure to take tests—there was no evidence that the failure to take any of
those tests caused Mrs. Hooks’s death. No witness testified as to any link between the
test and her death caused by a massive stroke. Because there was no evidence on
causation with respect to the bulk of appellant’s alleged breaches, we need not focus on
whether those breaches fell below the standard of care.
       The only alleged breach appellant argues caused Mrs. Hooks’s death is the failure
to administer oxygen. Dr. Hawkins testified that giving oxygen would have assisted
Mrs. Hooks. Appellant argues that he established a link between the lack of oxygen and
Mrs. Hooks’s brain death. Appellant’s argument is as follows: “The trial transcript
establishes that Plaintiffs established causation as between the administration of oxygen
and Mrs. Hooks’ condition. . . . Defendant[’s] reference to another part of the transcript
only shows that there are conflicting facts as to the issue of causation. Nevertheless,
Plaintiffs reserve their right to argue more fully said issue during the hearing in this
matter. Moreover, Dr. Hawkins[’s] testimony established that there was a causal
connection between Mrs. Hooks not getting oxygen and her brain death.”
       We find no record evidence that the paramedics’ failure to provide oxygen
contributed to Mrs. Hooks death. Nevertheless, it appears that appellant’s counsel
attempted to elicit such testimony but objections to the proposed testimony were
sustained. For purposes of this appeal, we assume Dr. Hawkins would have testified that
the failure to administer oxygen caused Mrs. Hooks’s death and conclude that
Dr. Hawkins was qualified to opine on the cause of Mrs. Hooks’s death. Dr. Hawkins
was qualified as a medical expert with over 27 years’ experience, and his experience as a


                                              6
pulmonologist was directly relevant to his proposed opinion. In Wright, a physician was
permitted to testify that if oxygen and an IV had been administered, the decedent would
have lived. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 348 (Wright).)
Dr. Hawkins should have been permitted to testify similarly.
3. Dr. Hawkins Was Not Qualified to Testify as to the Standard of Care for
Paramedics
       Although we assume appellant demonstrated that the failure to provide oxygen
caused Mrs. Hooks’s death, there was no evidence that such failure constituted gross
negligence. Although Dr. Hawkins was qualified to testify as to whether oxygen would
have helped prevent the stroke that caused Mrs. Hooks’s death, he was not qualified to
testify as to the standard of care for paramedics. Appellant’s argument that he was so
qualified is not persuasive.
       In Wright, supra, 219 Cal.App.3d 318, the court reversed nonsuit after finding a
nurse’s testimony sufficient to support liability for a paramedic’s negligence. The nurse
had written about paramedics, was involved in professional committees dealing with
paramedics, and had evaluated paramedics. (Id. at p. 338.) She testified that she was
familiar with the standards of care for paramedics. (Ibid.)
       In contrast to Wright, here there was no testimony by a person knowledgeable
about the standard of care as to paramedics to testify regarding a breach of that standard
of care. Dr. Hawkins was not qualified to testify about the standard of care for
paramedics because he testified he did not know the requirements for a paramedic.
Because Dr. Hawkins was not familiar with the standard of care for a paramedic,
appellant’s argument that he should have been allowed to testify regarding other related
tests paramedics should have conducted lack merit.
       Neither Cline v. Lund (1973) 31 Cal.App.3d 755 nor Alef v. Alta Bates Hospital
(1992) 5 Cal.App.4th 208 compels a different result. In Cline, the court held that when
“a duly licensed and practicing physician has gained knowledge of the standard of care
applicable to a specialty in which he is not directly engaged but as to which he has an
opinion based upon education, experience, observation or association with that specialty,


                                             7
his opinion is competent.” (Cline, at p. 766.) That rule is inapplicable here because
Dr. Hawkins testified that he was not knowledgeable as to the standard of care for
paramedics. In Alef, the court reversed a judgment of nonsuit. The plaintiff had alleged
that the nurses breached the standard of care causing injury during birth. (Alef, at p. 214.)
The court explained that “a nurse’s conduct must not be measured by the standard of care
required of a physician or surgeon, but by that of other nurses in the same or similar
locality and under similar circumstances.” (Id. at p. 215.) A doctor testified as to the
standard of care for a task that could be performed by either a physician or a nurse.
(Ibid.) The doctor therefore was familiar with the requirements for nurses. (Ibid.) In
contrast here, there was no evidence Dr. Hawkins was familiar with the requirements for
a paramedic to administer oxygen in the field. The issue is not whether Dr. Hawkins was
“qualified to administer oxygen” but whether he was qualified to opine on the standard of
care for a paramedic to do so. If there had been evidence that the standard was the same
for the paramedic as for the physician then Alef would be helpful to appellant.
       Finally, appellant argues that the trial court conceded Dr. Hawkins was an expert
on paramedic care. We do not agree with that characterization. More importantly,
following our independent review of the record, we find no evidence Hawkins was an
expert on paramedic care. He expressly testified that he was not aware of requirements
for paramedics.
4. Gross Negligence Cannot Be Resolved by Common Experience
       Appellant argues that jurors could infer from their common experience that
paramedics should have given Mrs. Hooks oxygen because that determination is
“‘“within the common knowledge of the layman.”’” (Willard v. Hagemeister (1981) 121
Cal.App.3d 406, 412.) Appellant cites no authority for the proposition that the standard
of care of a paramedic is a matter of common experience, but instead analogizes to the
concept of res ipsa loquitur. That doctrine provides: “‘“The standard of care against
which the acts of a physician 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 [citations], unless the conduct required by the particular


                                             8
circumstances is within the common knowledge of the layman.” [Citations.]’
[Citations.] The ‘common knowledge’ exception is principally limited to situations in
which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is
able to say as a matter of common knowledge and observation that the consequences of
professional treatment were not such as ordinarily would have followed if due care had
been exercised.’ [Citation.] The classic example, of course, is the X-ray revealing a
scalpel left in the patient’s body following surgery.” (Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.)
       We do not agree with appellant’s contention that a layperson can determine based
on common knowledge that it was grossly negligent not to administer oxygen when
Mrs. Hooks presented with difficulty breathing. The treatment for someone with
shortness of breath is not a matter within common knowledge. It is not akin to something
that would not happen absent negligence such as leaving a scalpel inside a patient’s body.
Observing the X-ray of a scalpel in the body is indicative of negligence. In contrast the
relationship between administering oxygen and suffering from a stroke is not apparent
based on common knowledge. Moreover, appellant was required to show that the failure
to administer oxygen constituted an extreme departure from the ordinary standard of care,
a determination that cannot be made without knowing the standard of care.
5. New Trial Motion
       In connection with their new trial motion, appellant presented evidence of a
manual that a paramedic should know how to administer oxygen. Putting aside whether
the court erred in denying appellant’s request for judicial notice of the document which
was not part of trial, there was no evidence that the paramedics did not know how to
administer oxygen. The issue was whether the failure to administer oxygen constituted
gross negligence. The manual appellant sought to introduce does not address that
question.
6. The Court Did Not Improperly Weigh the Evidence
       The trial court stated that the evidence did not show gross negligence absent
expert testimony. That statement does not reflect on the credibility of appellant’s


                                              9
evidence. Instead it is a legal determination that the evidence was insufficient as a matter
of law absent expert testimony.3
       In any event, we have independently reviewed the record and conclude as the trial
court did that interpreting the evidence in the light most favorable to plaintiff, there was
insufficient evidence to show gross negligence. As explained, the only alleged breach
appellant argues could have caused Mrs. Hooks’s death was the failure to administer
oxygen. Appellant presented no evidence that such failure constituted “‘“the want of
even scant care or an extreme departure from the ordinary standard of conduct.”’”
(Eastburn, supra, 31 Cal.4th at pp. 1185-1186.) The trial court therefore properly
granted nonsuit.
                                      DISPOSITION
       The judgment is affirmed. The parties shall bear their own costs on appeal.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




3      In several footnotes, appellant suggests that the court improperly interrupted his
counsel’s argument. Appellant also suggests that the court interrupted his counsel
because of the race of his counsel. While the court attempted to stop counsel from
repeating arguments made in his written motion for new trial, there is no record support
for appellant’s suggestion the court committed misconduct.


                                             10
