Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2008-00101022, David R. Chaffee, Judge, and Richard Habeck, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Balisok & Associates and Russell S. Balisok for Plaintiffs and Appellants.
Murchison & Cumming, David A. Winkle and Terry L. Kesinger for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiffs Sylvia Cotton, Janice Mitchell, Patricia Miller, and Terrie Essex appeal from a judgment in favor of defendant Fountain Valley Regional Hospital and Medical Center. The trial court entered the judgment after sustaining demurrers to several causes of action without leave to amend in both the first and second amended complaints, and granting defendant’s motion for summary judgment on the surviving claims. On appeal, plaintiffs contend the trial court erred in sustaining, without leave to amend, defendant’s demurrer to five causes of action in their first amended complaint and its demurrer to one cause of action in their second amended complaint. Plaintiffs also challenge the trial court’s order granting summary judgment to defendant on the remaining two causes of action alleged against it.
We agree the trial court erred in sustaining the demurrer to the first amended complaint’s second and fourth counts without leave to amend, and in granting defendant’s motion for summary judgment. As to those rulings we reverse the judgment and remand the matter for further proceedings. In all other respects, we affirm the trial court’s rulings.
ALLEGATIONS AND PROCEDURAL BACKGROUND
1. The First Amended Complaint
Plaintiffs’ first amended complaint named nine defendants and contained 10 causes of action. It alleged plaintiffs are the children of T.J. Jackson, a senior citizen and an enrollee in a health plan for senior citizens named “Secure Horizons” operated by PacifiCare of California, Inc. (PacifiCare). Through Secure Horizons Jackson received Medicare benefits, including both physician services and hospital services.
In turn, PacifiCare contracted with medical groups to provide physician services and hospitals, including defendant, for hospital services to Secured Horizons’ enrollees within a geographical area. Plaintiffs alleged the phrase “hospital services” includes “those services provided by acute care hospitals, such as inpatient services, nursing, pharmacy, surgical support, social workers, food, ” plus “home health agency services, skilled nursing services, [and] out-patient surgery services....”
Before April 2006, Jackson lived in Los Angeles and Secure Horizons assigned him to a nearby medical group and hospital. Jackson then moved to Anaheim Hills and informed PacifiCare of his new residence. PacifiCare told Jackson that he would be reassigned to Orange County physician and hospital service providers. However, when PacifiCare sent Jackson a new membership card, it still reflected he was assigned to the Los Angeles health care providers.
Jackson fell and broke a leg on December 31, 2006. He was taken to a hospital near his residence belonging to another health care plan. Surgery was performed to repair the injury and then Jackson was transferred to a nearby nursing facility. In mid-January 2007, Jackson was moved again to St. Edna Subacute and Rehabilitation Center (St. Edna) nursing facility operated by Covenant Care California, Inc. (Covenant). About the same time, PacifiCare notified Jackson that, effective February 1, he would be reassigned to an Orange County physician services provider and to defendant as his local hospital services plan provider.
“On January 31, 2007, [Jackson] was transferred from St Edna’s to [defendant’s] emergency room, where he was found to be profoundly dehydrated and septic secondary to an infection and abscess at the site of the surgery. Upon evaluation in the emergency room, [Jackson] was admitted as a patient....” Plaintiffs alleged Jackson was “manifestly in need of urgent care including surgery” for an infection at the site of the prior surgery. But due to a dispute between PacifiCare and the physician and hospital service providers in both Los Angeles and Orange Counties over financial responsibility for his care, Jackson “was denied any medical care until February 7 or 8, ” even though a physician named Dr. Tapadiya, “volunteered to perform surgery... without guarantee of payment....” (Italics and bold omitted.)
Plaintiffs further alleged that once Jackson was finally scheduled for surgery “[t]he process of re-hydration[] and other treatment” in advance of the surgery “caused a dangerous and... life[-]threatening... increase in [his] blood pressure.... Even though... surgery could not be performed until [Jackson’s] blood pressure was controlled, the... attending physician made no new orders, and the blood pressure went unaddressed and uncontrolled....” (Italics omitted.) Before surgery, Jackson “was found unresponsive, ” and a “CT-scan revealed that [he] had suffered a massive inter-cranial hemorrhage... directly caused by the... unaddressed and untreated increase in blood pressure.” Jackson died shortly thereafter.
The first amended complaint named defendant as a party in all but the first and third causes of action. The second and fourth counts sought recovery for negligence and what was described as “Negligence-Wilful Misconduct” based on the allegedly inadequate care Jackson received while at St Edna’s.
The second count alleged “[h]aving entered into an agreement with PacifiCare to provide ‘hospital services’ to enrollees assigned to it, ... [defendant] entered into an agreement with St Edna’s” whereby St. Edna’s would “provide skilled nursing services to enrollees....” Defendant thus had “a duty... to ascertain whether St. Edna’s was organized, equipped, staffed, and operated in a manner which would provide appropriate care to... enrollees, ” which included “review[ing] public records” concerning St. Edna’s “operations, ” its “quality of care, ” and “whether there was any information suggesting that St. Edna’s was not fulfilling its responsibilities to patients.” Defendant breached this duty by “fail[ing]... to investigate or inquire into the ability of St. Edna’s to provide adequate skilled nursing services to meet the needs of enrollees, ” which resulted in Jackson’s injuries.
The fourth count alleged defendant “knew or should have known that in failing to discharge [its] responsibility to make reasonable inquiry into the ability of... St Edna’s nursing home facility to provide care, [it] created the peril that enrollee patients... in need of rehabilitative care and therapy, as well as basic nursing service[s], would not receive such service[s], and that they would sicken and die....” But defendant “consciously disregarded the... peril and the high probability of injury, in part because the cost and ‘trouble’ of doing so threatened to impair the profitability of [its] operations....”
The remaining counts sought recovery based on the alleged failure to provide Jackson with medical care after his admission to the hospital and the delay in performing surgery on him. The fifth cause of action, also entitled “Negligence – Wilful Misconduct, ” alleged defendant “refused [to] acknowledge [the] obligation to provide hospital... services to [Jackson]” on the ground its “agreement with PacifiCare provided... [it] would have no responsibility for the cost of... hospital services in cases when, on the first day of... hospitalization, [it] had not been financially responsible for the patient’s care.” (Italics omitted.)
The sixth count sought recovery for breach of fiduciary duty. It alleged defendant’s status “as healthcare provider[] and health care decision maker[] for [Jackson]” obligated it “to not... be influenced by adverse financial conflicts of interest” and “to disclose adverse financial conflicts of interest, ” which it breached by failing to provide or delaying the provision of reasonably necessary care after Jackson’s admission to the hospital.
The seventh count for constructive fraud and the ninth count for concealment also sought recovery against defendant based on its alleged breach of fiduciary duty to Jackson. The seventh count claimed defendant “gained an advantage over [Jackson]” by sharing with others in certain cost savings realized from keeping Jackson at St. Edna’s rather than in the hospital and thereafter by delaying the expenditure for surgical services. The ninth count alleged defendant deceived Jackson by failing to disclose he “would not receive necessary hospital and surgical care because [defendant did not] want[] to do anything which might subject [it] to liability or financial risk for the cost of his care.”
The eighth cause of action for bad faith alleged “defendant acted as an insurer, by assuming the risk of the cost of providing care in consideration for a fixed per patient per month ‘premium’ payment, ” which it breached “by unreasonably denying coverage for [Jackson’s] medical care” for hospital services. Finally, the tenth cause of action sought recovery for wrongful death.
Defendant demurred to all but the tenth count of the first amended complaint and moved to strike the portions seeking recovery of punitive damages. The court overruled the demurrer to the fifth count (negligence), sustained it with leave to amend as to the ninth count (concealment), but sustained it without leave to amend to the remaining counts and struck the pleading’s elder abuse allegations.
2. The Second Amended Complaint
Plaintiffs’ second amended complaint contained five causes of action. Defendant was named in the third count for “Negligence – Wilful Misconduct, ” which was identical to the first amended complaint’s fifth cause of action. The fourth count for “Fraud – concealment” alleged defendant “had certain fiduciary duties to” Jackson arising from its status “as [his] health care provider[]” that it breached by failing to disclose Jackson “would not be provided with the life saving surgical care he needed and which had been ordered by his physician, because [defendant] was not assured that it would be paid for furnishing the necessary services which [Jackson] would need during and after the surgery.” The fifth count sought recovery for wrongful death.
Defendant again demurred and moved to strike portions of the second amended complaint. The court overruled the demurrer as to the third (negligence) and fifth (wrongful death) counts. But it sustained the demurrer without leave to amend to the fourth count (concealment).
3. The Motion for Summary Judgment
Defendant then moved for summary judgment on the remaining two counts. It asserted the undisputed facts included: (1) “The care and treatment provided to... Jackson, during his [stay at defendant’s hospital] was appropriate and satisfied the requisite standard of professional care for hospitals and their non-physician staff in the Southern California community”; (2) defendant “met its obligation to care for [Jackson]”; (3) defendant’s “nurses and non-physician staff did not cause or contribute to... Jackson’s death”; and (4) Jackson’s primary care physician “was not employed by [defendant] and acted as an independent contractor in relation to [defendant] when she rendered professional care to... Jackson.” (Capitalization omitted.)
Defendant supported the motion with declarations and records relating to Jackson’s care while a patient at its hospital. Its director of human resources submitted a declaration denying Jackson’s primary care physician was employed by the hospital.
Another declaration was presented by Dr. Roy L. Herndon, a licensed physician with a private practice specializing in internal medicine, who had taught at the University of California Irvine Medical Center for nearly 30 years and who is currently on staff at St. Joseph’s Hospital. Herndon reviewed defendant’s records and other documents relating to Jackson’s care. He summarized Jackson’s medical history and his condition upon his entry to the hospital, plus the changes in Jackson’s condition and the treatment he received as a patient. Herndon opined defendant’s “nursing and non-physician hospital staff... rendered appropriate care to... Jackson in accordance with physician orders, and satisfied the applicable standard of professional care required... for hospitals and their non-physician staffs, ” and “that nothing the nursing and non-physician staff did or failed to do caused or contributed to... Jackson’s death.”
In particular, Herndon concluded “from the point of [Jackson’s] admission, [he] received attentive and extensive medical care and was worked up by consultants specializing in cardiology, orthopedics, infections disease, nephrology, gastroenterology, neurology and neurosurgery, ” who “ordered multiple tests”; “[t]he timing of and decision to perform surgery on [Jackson] rested entirely with his physician in consultation with the other consulting physicians, ” not defendant’s “nurses and non-physician staff”; defendant’s staff “appropriately communicated with the... physicians caring for [Jackson] and appropriately carried out the various orders issued by the[m]”; Jackson’s death “result[ed from] a massive brain hemorrhage and not from any condition for which his multiple... doctors were treating him”; and that “[n]othing done or not done by any of the nurses or non-physician staff... caused or contributed to [Jackson’s] demise.”
Defendant also presented the declaration of Ginger Varca, a registered nurse licensed to practice in California for over 30 years, including more than 20 years as critical care nurse at a local hospital, plus teaching at a nearby university, and working as a consultant to a state board that evaluates nurses for compliance with state law. Based on defendant’s hospital records, Varca concluded its “nursing and non-physician staff... rendered appropriate care to... Jackson....” In particular, Varca stated “[i]t is not the responsibility of nursing and non-physician staff to make diagnoses or to determine when a patient is medically stable for surgery.” Further, defendant’s “nursing staff competently, and within the standard of care, evaluated and assessed... Jackson and notified his physicians of his clinical condition and cared for his various complications pursuant to physician orders and as warranted by the medical circumstances presented.”
Plaintiffs opposed the motion. In their separate statement of facts, they acknowledged Jackson’s primary care physician “has never been [defendant’s] employe[e].” But they also submitted the declaration of Lawrence Miller, a physician licensed to practice in California since 1975. Miller currently serves as a consultant in physical medicine, rehabilitation and geriatrics for the California Department of Managed Health Care. Between 1975 and December 1996, he had worked as a medical director for rehabilitation departments and clinics at several hospitals.
Miller concluded defendant breached the standard of care in two ways. First, it “plac[ed] financial considerations above patient care” by “fail[ing] to proceed with necessary surgery... based upon a failure or inability to obtain authorization....” He cited medical records reflecting that “[o]n February 1, 2007[, ] Dr. Tapadiya, a consulting orthopedic surgeon, recommended surgery to explore and repair [Jackson’s] infected left hip, ” but defendant “could not obtain authorization for the surgery from... Jackson’s medical group or insurer, and failed and refused to schedule the surgery.” Miller believed the resulting “delay was unreasonable because ultimately one of the medical groups or PacifiCare would have been responsible for payment for medically necessary surgery....”
Second, Miller concluded the “nursing staff’s prolonged failure over a period of days to monitor and respond to elevated blood pressure... caused or contributed to the medical complications which caused the death of... Jackson.” He claimed defendant’s records reflected the “nursing staff failed to properly administer medication necessary to address... Jackson’s blood pressure... due to [Jackson’s] inability to take the medications orally, [and] without any effort by nursing staff to obtain orders for IV blood pressure medication.” Miller also claimed that when Jackson “experienced a severe spike in blood pressure” on the evening of February 6 and a physician “ordered immediate administration of Benicar to address severe hypertension, ” the “nursing staff failed to promptly obtain and administer” that drug while “the pharmacy apparently substituted another medication, Atacand, which was not administered until almost four hours later....” Finally, he also criticized the nursing staff for “fail[ing] to closely monitor... Jackson’s blood pressure through the night” or notify “any physician” upon determining “his blood pressure was further elevated” the next morning.
Defendant objected to Miller’s declaration, claiming his opinions “[l]ack[ed] foundation” because “Miller is not qualified to render an opinion as to nursing care and... has not worked in a hospital setting since at least 1996.” The trial court sustained the objection and granted the motion. “[B]ased on the admissible declarations in support of the motion for summary judgment, and... the inadmissible declaration in opposition, ” it concluded “there... is... a lack of expert opinion to refute the defense expert witness....”
DISCUSSION
1. The Demurrer Rulings
a. Introduction
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
b. The Second and Fourth Causes of Action
Defendant demurred to the first amended complaint’s second and fourth counts on the grounds Health and Safety Code section 1371.25, a provision of the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.), barred it from being held vicariously liable for St. Edna’s failure to adequately care for Jackson and these causes of action failed to allege it owed a duty to Jackson. On appeal, plaintiffs contend its allegations against defendant for Jackson’s inadequate treatment while at St. Edna’s is based on “a breach of [defendant’s] own duty to enrollees assigned to it” (underscoring omitted), and that it adequately alleged defendant breached “a duty in the delegation of its responsibility to provide institutional care, including skilled nursing care, to use due diligence to inquire into the care rendered to St. Edna’s patients.”
Defendant’s reliance on Health and Safety Code section 1371.25 is unavailing. It declares: “A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others. Any provision to the contrary in a contract with providers is void and unenforceable. Nothing in this section shall preclude a finding of liability on the part of a plan, any entity contracting with a plan, or a provider, based on the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability.” In Watanabe v. California Physicians’ Service (2008) 169 Cal.App.4th 56, the court recognized the statute was intended to eliminate only vicarious liability for another’s wrongful conduct. “It is evident that the first and second sentence[s]... preclude the imposition of vicarious liability, ” while “ it is [also] clear that under the third sentence an entity that has committed an act or omission for which it is liable remains liable for that act or omission, even if it shares liability with another entity. All three doctrines enumerated in the third sentence... ─equitable indemnity, comparative negligence and contribution─are instances when one or more parties are liable for an act or omission. [Citations.]” (Id. at p. 64.) As plaintiffs note, the first amended complaint’s second and fourth counts allege defendant failed to oversee St. Edna’s operations to ensure it was providing adequate care to patients, not that it was vicariously liable for St. Edna’s failure to provide adequate care.
Defendant next cites Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350 to support its no duty claim. This case also fails to support its argument. There a janitorial services company obtained a bond from the defendant as proof of its employees’ financial responsibility against any fraudulent or dishonest conduct. Initially, the defendant conducted criminal background checks of the company’s employees, but later eliminated this practice. Williams, a janitorial company employee with an extensive record of property crimes, raped a woman on the grounds of a hospital where the company provided janitorial services.
The woman sued the defendant, but the trial court granted its motion for nonsuit. On appeal, the judgment was affirmed. “A determination that... no duty is owed to the plaintiff is particularly common in situations in which the defendant’s responsibility for the activities of third persons is involved. [Citation.] Among the various policy considerations whose aggregate effect comes to be stated in terms of the legal conclusion that there is a ‘duty, ’ foreseeability of the risk actually encountered is of primary importance. [Citation.] [¶]... [¶]... Hartford had no reason to suspect that Williams represented a latent threat of physical harm to anyone. Even if it had investigated Williams’ past, Hartford would have discovered that the foreseeable risk, if any, was for property-related crimes, not violent crimes to persons. Least of all did Hartford have any indication that Williams’ criminal impulses had, or would, come to focus on plaintiff.” (Kane v. Hartford Accident & Indemnity Co., supra, 98 Cal.App.3d at pp. 355, 357.)
Here, the foreseeable harm resulting from defendant’s alleged failure to inquire into the adequacy of St. Edna’s care was that nursing patients would not be properly cared for and might suffer injury as a result. That is exactly what plaintiffs allege resulted from defendant’s breach of its purported duty of oversight.
Alternatively, defendant notes that, even if it “had a duty to ensure the competence of St. Edna’s, ” causation is lacking as a matter of law. It argues that, because the amended complaint alleges Jackson was admitted to St. Edna’s before his reassignment to it by PacifiCare, and since defendant “did not send [Jackson]” to St. Edna’s, “any failure by [defendant] to investigate St. Edna’s could not have caused harm....” This claim fails as well.
While a “court may properly examine the proximate cause of the alleged injury at the demurrer stage” (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1190), courts have held “normally the issue of causation is a question of fact and therefore not within the scope of a demurrer....” (Ibid.) Thus, “[u]nder well established principles, ... general allegations of negligence, proximate causation and resulting injury and damages suffice to state a cause of action [citation]....” (Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 514.)
The allegations of the first amended complaint are sufficient to prevail over defendant’s claim that Jackson’s injuries while at St. Edna’s facility resulted from an intervening act of plaintiffs’ decision to take their father to that facility. “‘In general, if the risk of injury is reasonably foreseeable, the defendant is liable, ’” and “‘[r]easonable foreseeability in this context is a question for the trier of fact.’ [Citation.]” (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.)
Consequently, we conclude the trial court erred by sustaining defendant’s demurrer to the first amended complaint’s second and fourth causes of action.
c. The Breach of Fiduciary Duty Claims
The first amended complaint’s sixth cause of action for breach of fiduciary duty, seventh cause of action for constructive fraud, and the ninth cause of action for fraudulent concealment were based on the purported existence of a fiduciary relationship between defendant and Jackson. The trial court sustained defendant’s demurrer to the first amended complaint’s sixth and seventh counts without leave to amend. However, it granted plaintiffs leave to amend the ninth count and they again sought to state a fraudulent concealment cause of action in the second amended complaint’s fourth count. In ruling on defendant’s demurrer to the second amended complaint, the trial court sustained it to the fourth count without leave to amend.
On appeal, plaintiffs challenge these rulings. Defendant repeats its claim that the absence of a fiduciary duty between it and Jackson defeats these causes of action. We agree.
In Moore v. Regents of University of California (1990) 51 Cal.3d 120, the Supreme Court rejected the claim a medical center had a fiduciary relationship with a patient. There the plaintiff had undergone treatment for cancer at the medical center. During the treatment, the plaintiff’s attending physician removed organs and took samples of his blood and other bodily fluids. The plaintiff later sued the physician, the medical center, a researcher employed by it, plus a genetics institute, and a pharmaceutical company on several theories, including breach of fiduciary duty. He alleged the defendants “us[ed] his cells in potentially lucrative medical research without his permission.” (Id. at pp. 124-125.) The Supreme Court held the plaintiff had stated a claim for breach of fiduciary duty against his physician, but as to the remaining defendants, it noted “[t]he[y]... are not physicians. In contrast to [the physician], none of these defendants stood in a fiduciary relationship with Moore or had the duty to obtain Moore’s informed consent to medical procedures. If any of these defendants is to be liable for breach of fiduciary duty or performing medical procedures without informed consent, it can only be on account of [the physician’s] acts and on the basis of a recognized theory of secondary liability, such as respondeat superior.” (Id. at p. 133.)
Under Moore, defendant cannot be held directly liable to plaintiff for breach of fiduciary duty. While Moore acknowledged the possibility of vicariously imposing such liability on a hospital, as discussed above, Health and Safety Code section 1371.25 prohibits imposing liability on a health care provider on that basis.
Plaintiffs rely on McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412. That case is distinguishable because it does not concern a claim against a hospital. McCall involved a patient’s action against a health maintenance organization, the patient’s physician, and a physician provider organization for refusing to provide him with certain medical services. The sole issue on appeal was “whether state law claims against a health maintenance organization (HMO), arising out of its refusal to provide services under a Medicare-subsidized health plan, fall within the exclusive review provisions of the Medicare Act requiring exhaustion of administrative remedies. [Citation.]” (Id. at p. 414.)
The existence of a fiduciary relationship is also essential to a cause of action for constructive fraud. (Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 960.) As for fraudulent concealment, cases have recognized a cause of action may be stated in the absence of fiduciary relationship in some circumstances. (Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.) But here, plaintiffs based their right to recover for fraudulent concealment on the basis of a fiduciary relationship. Thus, the foregoing analysis bars recovery on those causes of action as well and the trial court did not err in barring plaintiffs from further prosecuting these theories by sustaining the demurrer to the first amended complaint’s sixth and seventh causes of action and the second amended complaint’s fourth cause of action without leave to amend.
d. The Eighth Cause of Action for Bad Faith
In the first amended complaint’s eighth cause of action, plaintiffs sought tort recovery for breach of the implied covenant of good faith and fair dealing, alleging “defendant acted as an insurer, by assuming the risk of the cost of providing care in consideration for a fixed per patient per month ‘premium’ payment....” But, as defendant notes, it is not an insurer and “outside the area of insurance contracts, our Supreme Court has been unwilling to permit tort recovery for the bad faith breach of a contract, unless in addition to the breach of the covenant a defendant’s conduct violates a fundamental public policy of the state. [Citation.]” (Rattan v. United Services Auto Assn. (2000) 84 Cal.App.4th 715, 722.) The trial court properly sustained the demurrer to this count without leave to amend.
2. The Summary Judgment Motion
a. Introduction
Defendant successfully moved for summary judgment on the second amended complaint’s remaining two causes of action which sought recovery for negligence and wrongful death based on defendant’s alleged breach of its duty “to provide... [Jackson] the care... reasonably needed, including surgical services and other services related to his sepsis and dehydration, ” as well as “medical support... to address his blood pressure....”
Code of Civil Procedure section 437c, subdivision (c) declares a summary judgment motion “shall be granted if 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.” The statute’s purpose is to provide the parties with a means to resolve whether, despite the allegations of the pleadings, a trial is required. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “To prevail on the motion, a defendant must demonstrate plaintiff’s cause of action has no merit. This requirement can be satisfied by showing either one or more of its elements cannot be established or that a complete defense exists to it. [Citations.]” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 555.)
The moving party bears the burden of persuasion that no triable issue of material fact exists, i.e., no evidence “allow[ing] a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion....” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 506.) Initially, this party also has the burden of production to make a prima facie showing that a triable issue of fact does not exist. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 353.) “[I]f [the moving party] carries [its] burden of production, [it] causes a shift, and the opposing party is then subjected to a burden of production of [its] own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
“‘Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] “‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’” [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]’ [Citation.]” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) However, evidentiary rulings made in relation to the motion are reviewed for abuse of discretion. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.)
b. Analysis
Plaintiffs attack the trial court’s order granting defendant’s summary judgment motion. Initially, they claim the court erred in rejecting Dr. Miller’s declaration. We agree.
As defendant’s motion and supporting papers acknowledge, one issue raised by plaintiffs’ pleadings was the adequacy of care provided to Jackson by defendant’s nursing and non-physician staff. Miller’s opinions and the evidence cited in support of them sufficed to create a triable issue of material fact as to this claim.
The trial court agreed with defendant’s objection to Miller’s competency to testify as to the quality of the hospital’s nursing care. The exclusion of Miller’s declaration was error. Code of Civil Procedure section 437c, subdivision (d) declares “[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” While there is contrary authority in other states (see Sullivan v. Edward Hospital (2004) 209 Ill.2d 100, 111-122 [806 N.E.2d 645]), California case law recognizes a physician may be “competent to testify as to the negligence of... nurses” (Goff v. Doctors General Hospital of San Jose (1958) 166 Cal.App.2d 314, 319).
Miller’s declaration reflected he had been a licensed physician for over 30 years and had spent more than 20 years of his medical career as a director in hospitals and clinics. “[T]the extent of an expert’s knowledge goes to the weight of his testimony, rather than to its admissibility, and the amount of credence to be given to [the expert’s] testimony [i]s a question for the trier of fact. [Citations.]” (Estate of Schluttig (1950) 36 Cal.2d 416, 424; see also Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1390-1391 [though physician “was not a specialist in emergency medicine, he had a number of years of emergency room experience and the extent of his knowledge to express an expert opinion goes to the weight of his testimony, not its admissibility”].)
Since the exclusion of Miller’s declaration was essential to the trial court’s ultimate decision to grant defendant’s summary judgment motion, our conclusion that it erred in excluding the declaration necessarily requires the order granting summary judgment be reversed.
DISPOSITION
The judgment is reversed with directions to overrule respondent’s demurrer to the first amended complaint’s second and fourth causes of action of the first amended complaint and its order granting that party’s motion for summary judgment and the matter is remanded to the superior court for further proceedings. The judgment is affirmed as to the superior court’s rulings on the first amended complaint’s sixth, seventh, eighth, and ninth causes of action and the second amended complaint’s fourth cause of action. The parties shall bear their own costs on appeal.
WE CONCUR: FYBEL, J., IKOLA, J.