Filed 3/20/13 Ramirez v. Long Beach Mem. Med. Center CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


HERMINIA RAMIREZ et al.,                                             B239125

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. NC051507)
         v.

LONG BEACH MEMORIAL MEDICAL
CENTER,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Roy L. Paul, Judge. Reversed.


         Law Offices of Philip P. DeLuca, and Philip P. DeLuca for Plaintiffs and
Appellants.


         Dummit, Briegleb & Trapp, Darren W. Dummit and Craig S. Dummit for
Defendant and Respondent.


                                __________________________________
       This appeal challenges a summary judgment in a wrongful death action based on
alleged medical malpractice in treating a gunshot victim at Long Beach Memorial
Medical Center (“the hospital”). The trial court found the hospital immunized itself
against respondeat superior liability for any malpractice by the treating physicians by
having the patient’s mother sign a printed admission form which included an express
acknowledgement that the medical providers were independent contractors and not
employees or agents of the hospital. The trial court found no triable issue of fact as to an
emergency room nurse because a declaration submitted in opposition to the hospital’s on
the standard of care was ruled inadmissible.
       The trial court granted the hospital’s motion for summary judgment and entered
judgment accordingly. Though the trial court properly found no triable issue of fact as to
the emergency room nurse, we find there are unresolved factual issues in determining
whether the admission form was binding so that it terminates the hospital’s liability.
For that reason, we reverse the grant of summary judgment.
                                          FACTS
Background
       An assailant shot Julio Ramirez in the left thigh and lower leg. After the shooting,
paramedics transported Ramirez to the hospital. Ramirez arrived at the emergency room
at about 11:45 p.m. Ramirez was agitated, suffering a large amount of blood loss, and in
extreme pain. Atul Gupta, M.D., the primary emergency room doctor, and Frederick
Stafford, M.D., a trauma surgeon, initially examined Ramirez. Dr. Stafford then went
into surgery with another gunshot victim. Ramirez remained in Dr. Gupta’s care in the
emergency room. Based on a lack of pulse in Ramirez’s lower leg and severe bleeding,
Dr. Gupta ordered an on-call vascular surgeon to be summoned to the hospital.
       After Ramirez arrived at the hospital, Ramirez’s mother, Herminia Ramirez, was
presented with a three-page, printed form entitled “CONDITIONS OF ADMISSION.”
The Conditions of Admission form included a consent to medical and surgical procedures
during hospitalization. Paragraph 4 of form stated “LEGAL RELATIONSHIP
BETWEEN HOSPITAL AND PHYSICIAN.” It reads:

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       “All physicians and surgeons furnishing services to the patient, including
       the . . . emergency department physician, and other hospital-based
       physicians and the like, are independent contractors with the patient and are
       not employees or agents of the hospital. The patient is under the care and
       supervision of his/her attending physician and it is the responsibility of the
       hospital and its nursing staff to carry out the instructions of such physician.
       It is the responsibility of the patient’s physician or surgeon to obtain the
       patient’s consent or informed consent, when required, to medical or
       surgical treatment, special diagnostic or therapeutic procedures, or hospital
       services rendered to the patient under general and special instructions of the
       physician. The hospital-based physicians fees are billed separately and
       independently of hospital charges, which means you will receive multiple
       bills.”

       Paragraph 14 of the Conditions of Admission form reads: “If any provision of this
agreement is finally determined by a court to be unenforceable, the remainder of this
agreement shall remain in full force and effect. [¶] This hospital admission agreement
shall bind the parties herein, including . . . the heirs, representatives, executors,
administrators, successors, and assigns of such parties . . . .” Ms. Ramirez signed the
Conditions of Admission form, with a notation that she was Ramirez’s “mom.”
       Meanwhile, there was a significant delay in the arrival of the on-call vascular
surgeon to the hospital. Ramirez was not taken from the emergency room to an operating
room until about 2:45 a.m., roughly three hours after he arrived at the emergency room.
Ramirez died during surgery at about 7:00 a.m. the following morning.
The Litigation
       Ms. Ramirez and Ramirez’s minor children (collectively Plaintiffs) filed a
wrongful death action. The operative pleading is their second amended complaint.
It alleges Ramirez “unnecessarily bled to death” as a result of a negligent delay in getting


                                               3
him into surgery. Dr. Gupta, Dr. Stafford, Nurse Lynn Witte, the hospital, and others are
listed as defendants.
       The hospital filed a motion for summary judgment supported by evidence showing
that Herminia Ramirez signed the printed Conditions of Admission form with the
language acknowledging that the doctors at the hospital were independent contractors,
and not employees, and by an expert’s declaration stating that the hospital’s nursing staff
did not act below the standard of care. The hospital’s motion argued there was no
liability on its part because the nursing and non-physician medical providers complied
with the standard of care at all times. As to the physicians, the hospital’s argument relied
wholly on Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448
(Mejia). The hospital argued the Plaintiffs had reason to know the physicians were not
agents because the undisputed evidence established the existence of an admission form
with an acknowledgement that the physicians were independent contractors, and not
employees or agents of the hospital.
       Plaintiffs filed their opposition, supported by a declaration from a nursing expert
who offered her opinion that the nurses at the hospital acted below the standard of care
during the time Ramirez was treated in the hospital’s emergency room.1 Plaintiffs also
presented expert declarations showing that the doctors who treated Ramirez acted below
the standard of care.
       On the issue of whether the doctors were acting as agents of the hospital during
Ramirez’s medical treatment, Plaintiffs argued: “[the hospital] alleges that the patient was
unable to go over the Conditions of Admissions and as such, provided notice to the
patient’s mother, Herminia Ramirez, by making her sign the Conditions of Admissions.
In fact, evidence exists that the patient was alert and in stable condition upon his arrival
to [the hospital] at 11:45 p.m. on July 28, 2007. The patient was a twenty one (21) year
old adult, [and] his mother has no authorization to sign on his behalf as [he] at all times
herein was an adult. Further, the patient was not taken for tests until 12:00 a.m. and


1
       Plaintiffs’ nursing expert was Patricia Reigers, R.N.

                                              4
returned at 12:30 a.m. Herminia Ramirez was told that if she wanted to go in and see her
son, she had to sign a stack of papers. Herminia signed the papers at 12:42 a.m. on July
29, 2007, fifty eight (58) minutes after Mr. Ramirez’ admittance to [the hospital] and
commencement of treatment. The evidence illustrates that Mr. Ramirez was in
immediate medical care and [neither] him, nor his mother, could be expected to
understand or act upon signing a stack of papers so that she could see her injured son. . . .
       “The decedent had no primary care physician[;] he was specifically seeking
[emergency] medical care and treatment from at [the hospital] . . . . In fact, he was
transported to the Emergency Department via ambulance. But the operation of a hospital
emergency room open to the public, where the public comes expecting medical care to be
provided through the normal operating procedures within the hospital, falls within the
limits for application of principles of ostensible agency and apparent authority. . . .
       “Hospitals spend enormous amounts of money advertising in an effort to compete
with each other for the health care dollar, thereby inducing the public to rely on them in
their time of medical need. The public, in looking to the hospital to provide such care, is
unaware of and unconcerned with the technical complexities and nuances surrounding the
contractual and employment arrangements between the hospital and the various medical
personnel operating therein. Indeed, often the very nature of a medical emergency
precludes choice. [Citation.]
       “There is no evidence stating that when Dr. Gupta, Dr. STAFFORD and/or Nurse
WITTE were attending to Julio Ramirez from the time of his admittance up until the time
his mother signed the Conditions of Admissions, fifty seven (57) minutes later, provided
actual notice to the patient, Julio Ramirez that they were independent contractors, apart
from [the hospital]. Testimony does exist from Dr. STAFFORD that the patient was alert
and awake at his initial examination. Not until an hour later, after Julio Ramirez had
been examined, diagnosed, taken for several tests and in the process of receiving
medication, did [the hospital] approach his mother to sign the Conditions of Admission.
In fact, Herminia Ramirez was left with no option to sigh the Authorization . . . if she
wanted to see her son. From a mother’s perspective, it can be deduced that Ms. Ramirez

                                              5
did not even read the documents, because she was concerned for her son, who had been
admitted into the hospital from gunshot wounds and she just wanted to see him. . . .
         “Unless the evidence conclusively indicates that the patient should have known
that the treating physician was not the hospital’s agent, such as when the patient is treated
by his or her personal physician, the issue of ostensible agency must be left to the trier of
fact.”
         The hospital filed objections to Nurse Reigers’s declaration submitted in support
of Plaintiffs’ oppositions. The hospital argued that, while Nurse Reigers was a qualified
nurse, she was not a qualified emergency room nurse. Thus, she was not competent to
offer an expert opinion on the standard of care in rendered to Ramirez in an emergency
room setting.
         At the trial court’s direction, the parties submitted further briefing and supporting
evidence, addressed to the issue of the nurse’s duty of care. Thereafter, the court
sustained the hospital’s evidentiary objection to Nurse Reigers’s declaration in its entirety
and then granted the hospital’s motion insofar as Plaintiff’s claims were based on Nurse
Witte’s actions. The court also granted the hospital’s motion on the issue of lack of
agency. The court entered summary judgment in favor of the hospital.
         Plaintiffs filed a timely notice of appeal.
                                         DISCUSSION
I.       Standard of Review
         Summary judgment is appropriate where “all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving
for summary judgment meets this burden by presenting evidence demonstrating that one
or more elements of the cause of action cannot be established or that there is a complete
defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar).) Once the defendant makes this showing,
the burden shifts to the plaintiff to show the existence of a triable issue of material fact as



                                                6
to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar,
supra, 25 Cal.4th at p. 850.)
       To determine whether the parties have met their respective burdens, the court
considers “‘all of the evidence set forth in the [supporting and opposition] papers, except
that to which objections have been made and sustained by the court, and all
[uncontradicted] inferences reasonably deducible from the evidence.’ [Citation.]”
(Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) A plaintiff opposing summary
judgment cannot rely upon the mere allegations or denials of its pleadings, but “shall set
forth the specific facts” based on admissible evidence showing a triable issue exists.
(Code Civ. Proc., § 437c, subd. (p)(2); Borders Online v. State Bd. of Equalization (2005)
129 Cal.App.4th 1179, 1188.) When a moving party makes the required prima facie
showing, failure to comply with this requirement may, in the court’s discretion, constitute
a sufficient ground for granting the motion. (See Buehler v. Alpha Beta Co. (1990) 224
Cal.App.3d 729, 734-735; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co.
(2009) 170 Cal.App.4th 554, 568.)
       However, the court may not grant the motion unless it first determines that the
moving party has met its initial burden of proof. (See Thatcher v. Lucky Stores, Inc.
(2000) 79 Cal.App.4th 1081, 1086 [“[U]nless the moving party has met its initial burden
of proof, the court does not have discretion under subdivision (b) of section 437c to grant
summary judgment based on the opposing party’s failure to file a proper separate
statement.”]; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 106 [trial court must
consider all of the papers submitted before exercising its discretion to grant a summary
judgment based on the failure to file an adequate separate statement]; Villa v. McFerren
(1995) 35 Cal.App.4th 733, 746.) When the facts are undisputed, the court may grant
summary judgment on issues that otherwise could have been submitted to the jury
because “[a]n issue of fact becomes one of law and loses its ‘triable’ character if the
undisputed facts leave no room for a reasonable difference of opinion.” (Ostayan v.
Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418.) Thus, the defendant is
entitled to summary judgment if the record establishes as a matter of law that none of

                                             7
plaintiffs’ asserted causes of action can be maintained. (Aronson v. Kinsella (1997)
58 Cal.App.4th 254, 270.)
       An appellate court independently reviews an order granting summary judgment.
(Aguilar, supra, at p. 860.) We determine whether the court’s ruling was correct, not its
reasons or rationale. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370,
1376.) “In practical effect, we assume the role of a trial court and apply the same rules
and standards which govern a trial court’s determination of a motion for summary
judgment.” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) “‘In performing our de
novo review, we must view the evidence in a light favorable to plaintiff as the losing
party [citation], liberally construing [his or] her evidentiary submission while strictly
scrutinizing [defendant’s] own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.’ [Citations.]” (United Parcel Service Wage & Hour
Cases (2010) 190 Cal.App.4th 1001, 1009; accord, Aguilar, supra, 25 Cal.4th at p. 843.)
We apply these standards as follows.
II.    The Hospital’s Liability Arising from Nursing Care
        Plaintiffs’ argue the trial court improperly granted summary judgment because
there were conflicting expert declarations regarding the nursing care provided.
Specifically, the hospital’s motion on the standard of care of the nursing services
provided to Ramirez motion was based on the expert declaration of Nurse McConnell,
and the Plaintiff’s submitted an opposing declaration from Nurse Reigers. According to
Plaintiffs, this created a triable issue of fact, making this is an inappropriate case for
granting summary judgment. We disagree.
       It is true, as the Plaintiff’s assert, that when ruling on a motion for summary
judgment a trial court may not weigh evidence as a fact-finder and must liberally construe
opposition papers. We also agree with Plaintiffs that a trial court may not grant a motion
for summary judgment where there is “valid, conflicting expert testimony” on the issues
of duty, breach or causation. The problem with the rules relied on by Plaintiffs is that the
trial court found Nurse Reigers’s expert declaration entirely inadmissible. As a result,
there was no evidence admitted in opposition to the hospital’s motion and there is no

                                               8
conflicting expert testimony. The motion was appropriately granted as to the hospital’s
nursing staff.
III.   Liability as to the Doctors’ Care ––Respondeat Superior Liability and
       Ostensible Agency
       Plaintiffs next contend the trial court erred in granting summary judgment in favor
of the hospital based upon the lack of ostensible agency of the treating physicians.
Plaintiffs argue the record discloses the existence of disputed issues of material fact
which must be resolved in determining whether the Conditions of Admission form signed
by Ramirez’s mother is enforceable so as to preclude Plaintiffs’ claims against the
hospital. We agree.
The Governing Law
       The respondeat superior liability and ostensible agency arguments on both sides in
the current case rely upon Mejia, supra, 99 Cal.App.4th 1448. In Mejia, Division Two of
the Fourth District Court of Appeal traced the history, principles, and law of respondeat
superior liability and ostensible agency as it involves hospitals and medical professionals.
The court reviewed authorities in both California and in other states, and then applied its
understanding of the law as it exists today in reversing a judgment of nonsuit in favor of a
hospital based on the lack of ostensible agency. We find the following discussion
instructive:
       “Although the cases discussing ostensible agency use various linguistic
formulations to describe the elements of the doctrine, in essence, they require the same
two elements: (1) conduct by the hospital that would cause a reasonable person to believe
that the physician was an agent of the hospital, and (2) reliance on that apparent agency
relationship by the plaintiff. (See, e.g., Sword [v. NKC Hospitals, Inc. (Ind. 1999) 714
N.E.2d 142, 151 (Sword)]; Pamperin [v. Trinity Memorial Hosp. (Wis. 1988) 423
N.W.2d 848, 854, 856 (Pamperin).]
       “Regarding the first element, courts generally conclude that it is satisfied when the
hospital ‘holds itself out’ to the public as a provider of care. (Butler v. Domin (Mont.
2000) 15 P.3d 1189, 1196-1197 (Butler); Sword, supra, 714 N.E.2d at p. 151.) In order

                                              9
to prove this element, it is not necessary to show an express representation by the
hospital. (Butler, at p. 1198; Sword, at p. 151; Clark [v. Southwest Hosp. & Family
Health Ctr. (Ohio 1994) 628 N.E.2d 46, 52-53 (Clark)] . . . .) Instead, a hospital is
generally deemed to have held itself out as the provider of care, unless it gave the patient
contrary notice. (Butler, at p. 1197; Sword, at p. 152; see also Pamperin, at pp. 856-857.)
Many courts have even concluded that prior notice may not be sufficient to avoid liability
in an emergency room context, where an injured patient in need of immediate medical
care cannot be expected to understand or act upon that information. (Simmons [ v.
Tuomey Regional Medical Center (S.C. 2000) 533 S.E.2d 312, 322-323 (Simmons)];
Sword, at p. 152; Clark, supra, at p. 54, fn. 1.)
       “The second element, reliance, is established when the plaintiff ‘looks to’ the
hospital for services, rather than to an individual physician. (Butler, supra, 15 P.3d at p.
1196; Simmons, supra, 533 S.E.2d at p. 322; Pamperin, supra, 423 N.W.2d at p. 857;
Jackson [ v. Power (Alaska 1987) 743 P.2d 1376, 1380 (Jackson)].) However, reliance
need not be proven by direct testimony. (Clark, supra, 628 N.E. at pp. 52-53; Jackson, at
p. 1382, fn. 10; see also Pamperin, at p. 857 . . . .) In fact, many courts presume reliance,
absent evidence that the plaintiff knew or should have known the physician was not an
agent of the hospital. (Butler, at p. 1197; Sword, supra, 714 N.E.2d at p. 152 . . . .)
       “As should be apparent to an astute observer, there is really only one relevant
factual issue: whether the patient had reason to know that the physician was not an agent
of the hospital. As noted above, hospitals are generally deemed to have held themselves
out as the provider of services unless they gave the patient contrary notice, and the patient
is generally presumed to have looked to the hospital for care unless he or she was treated
by his or her personal physician. Thus, unless the patient had some reason to know of the
true relationship between the hospital and the physician –– [e.g.], because the hospital
gave the patient actual notice or because the patient was treated by his or her personal
physician –– ostensible agency is readily inferred.” (Mejia, supra, 99 Cal.App.4th at pp.
1453-1455, italics added, fn. omitted.)



                                              10
Analysis
       If the decedent, Ramirez, had gone to the hospital for pre-planned surgery, and, if
he had signed the Conditions of Admission form acknowledging that the physician doing
the surgery was not an agent or employee of the hospital, and if he were suing the
hospital, then we might find that Mejia, supra, 99 Cal.App.4th 1448 applied, immunizing
the hospital against respondeat superior liability based upon Ramirez’s own express
acknowledgement of the absence of agency. If undisputed evidence shows a patient in a
non-emergency treatment situation expressly acknowledged a lack of agency between a
physician and hospital, we might conclude the patient was bound by the
acknowledgement. However, the scenario we described is not what happened between
Ramirez and the hospital.
       Here, Ramirez was the patient and he was undisputedly an adult. He did not sign
the Conditions of Admission form acknowledging that there was no agency relationship
between the hospital and the treating physicians. On the contrary, the patient’s mother
signed the form. In the absence of evidence showing that Ramirez authorized his mother
to act on his behalf, it cannot definitively be found that the patient acknowledged the non-
agent status of the doctors. We see two agency issues in the current case – the ostensible
agency between the hospital and the doctors in the emergency room, and the possible
agency relationship between Ramirez and his mother. We do not believe this is a proper
case for summary judgment under Mejia in the absence of evidence showing that the
patient, personally or by an authorized agent, acknowledged a non-agency relationship
between hospital and doctor. Even if Ramirez had survived, we think his mother’s
acknowledgement of non-agency might not prevent Ramirez from seeking to impose
liability on the hospital. At least not until evidence showed Ms. Ramirez had authority to
bind her son to the acknowledgement of non-agency.
       It also makes a difference that this is a wrongful death action brought by Ms.
Ramirez and Ramirez’s children, rather than a malpractice claim by Ramirez himself.
In the context of summary judgment, for the reasons stated above, we find there are
factual questions about Ms. Ramirez’s authority to bind her grandchildren to the

                                            11
acknowledgement of non-agency to defeat the hospital’s motion for summary judgment.
       We also find the motion for summary judgment should not have been granted as to
Ms. Ramirez. She did not, as a matter of law, bind herself to the express
acknowledgment of non-agency. Where the evidence shows an acknowledgement of
non-agency was signed in a stressful situation, with overtones of duress, it is a question
of fact whether the acknowledgement is enforceable against the signator. While we do
not see a declaration from Ramirez’s mother in the plaintiffs’ opposition to the hospital’s
motion, there are excerpts from her deposition testimony. Ms. Ramirez’s deposition
testimony shows the following: “[The hospital staff] left me there sitting down for 30
minutes. And then after that, a woman from there came out, and she told me that if I
wanted to go in and see [my son], I had to sign a stack of papers.” A jury reasonably
could infer that Ms. Ramirez did not understand, or freely accept, the acknowledgement
that the doctors in the emergency room were not the hospital’s agents or employees.
       The existence of a non-agency acknowledgement form, standing on its own as it
largely does here, not signed by the patient receiving treatment or shown to be signed by
a person who was an authorized agent for medical decisions, is insufficient to establish as
a matter of law that the hospital is immune from respondeat superior liability via a Mejia
defense.
                                     DISPOSTIION
       The summary judgment entered in favor of the hospital is reversed. Appellants to
recover their costs on appeal.


                                                         BIGELOW, P. J.
We concur:


              FLIER, J.




              GRIMES, J.

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