(Super. Ct. No. 04CC04395) Appeal from a judgment of the Superior Court of Orange County, B. Tam Nomoto Schumann, Judge.
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
Plaintiff Vanloan Johnson brought a complaint against Dr. John T. Chiu for medical malpractice and negligent maintenance of the laser machine that malfunctioned during a skin treatment, causing her injury. The trial court granted summary adjudication on the medical malpractice claim and later denied summary judgment on the negligent maintenance claim. The case was sent to a second judge for trial. Chiu brought another motion to dismiss the negligent maintenance claim, but this time he called it a motion in limine. The second judge also denied the motion. Not happy with the ruling, Chiu sought extraordinary relief. That was denied. For reasons not explained in the record, the case was assigned to a third judge for trial. Chiu brought his motion in limine once again and this time the judge granted it. Chiu argued in his in limine motions that Johnson was foreclosed from proceeding on her negligent maintenance cause of action because the court had previously granted him summary adjudication on the medical malpractice cause of action. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 (Flowers).)
Although Chiu's use of an in limine motion was improper and failed to comply with the procedural requirements of Code of Civil Procedure sections 437c and 1008, Johnson concedes she did not raise the issue in the trial court as required by K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948-949, and has withdrawn that argument. We reverse because Flowers does not preclude Johnson from proceeding on the merits of her negligent maintenance cause of action.
In the first cause of action of her complaint for damages against Chiu and Laserlight Center Amg, Inc. (Laserlight Center), plaintiff alleged medical malpractice. She alleged Chui began her on a series of laser treatments and on March 31, 2003, during one such treatment, the laser machine emitted "a loud booming sound" that impacted her right ear resulting in a loss of hearing and vertigo. According to the first cause of action, the injuries were proximately caused by Chiu as a result of his negligent examination, care, and treatment.
The second cause of action, strict liability for defective design, named only Does as defendants and is not involved in this appeal. The third cause of action was for negligent maintenance. It alleged plaintiff's injuries were proximately caused by the negligent repair and maintenance of the laser machine. Like the second cause of action, the third cause of action did not name Chiu or Laserlight Center as defendants, and named only Does.
Chiu and Laserlight Center filed a motion for summary judgment on the first cause of action, the only cause in which either was named as a defendant. They alleged summary judgment was required "because the undisputed evidence shows that, at all time[s], Dr. Chiu and Laserlight's care and treatment of plaintiff complied with the applicable standard of care and did not cause or contribute to any harm." (Capitalization omitted.)
The day before plaintiff filed her opposition to the motion for summary judgment, she amended the complaint to allege Chiu as one of the Does in the third cause of action for negligent maintenance. Her opposition to the summary judgment motion alleged the motion should be denied because Chiu negligently maintained the equipment that caused plaintiff's injuries (the third cause of action) and a defendant is entitled to summary judgment only when all theories of liability have been negated. Submitted with the opposition were a number of declarations and excerpts from depositions.
Plaintiff's argument was that Chiu had no regular maintenance of the equipment. One of the declarations in opposition to the summary judgment motion was by Christine Ruther. Ruther holds a bachelor of science degree in physics and a master of science degree in biomedical engineering. Her declaration addressed whether Chiu "used reasonable care in the repair and maintenance of the VascuLight system." In forming her opinion, she considered the following: "VascuLight Operator Manual; Service Reports for the Lumenis VascuLight System machine; Technical Reports on the system machine; Lumenis System Certification Reports (this is a report that is used as a work order when a customer calls with a particular problem. After completion of the work it is filled in with what was found); depositions of the plaintiff, John T. Chiu, M.D., nurse Rosemarie Houck, R.N., Lumenis employees, Jerome Claussen and Daniel Curtin; [and] Samuel Whitaker, M.D. (plaintiff's treating physician)."
Ruther concluded "the lack of maintenance of the machine, to a high degree of engineering probability, was a substantial factor in causing the flash tube to break causing the noise [Johnson] described as a gun going off." She cited a number of facts to support her opinion. Chiu did not have a service contract for the VascuLight device after the first year of service. Chiu did not replace the calibration power meter that had been burned by the laser beam, as recommended by Lumenis's service representative, creating "the potential for the flash lamp tube to produce heat stress on the flash lamp light tube, thereby causing the flash lamp to break causing a loud noise or sound." More than a year later, the service representative was called out to service the machine because Chiu "was having consistent problems with calibrating the heads." The service representative noticed the water level in the machine was low, added water, and noticed that Chiu had still not replaced the calibration box. There was another call for a service representative because the machine was shutting down due to a cooling error problem with a head connector. The service representative found algae growth in the water. Ruther stated algae growth "is from lack of maintenance and could be caused by not changing the deionizing filter." She noted that the service performed on the machine was the result of problems with the machine and none of the calls for service were for preventive maintenance. The Epilight head is warranted for 15,000 shots, at which point it is recommended the head be replaced. The head had 16,679 shots on it as of the date of Johnson was injured.
Judge Corey Cramin heard the motion for summary judgment. The court granted summary judgment in favor of defendant Laserlight Center. The court found plaintiff failed to present a triable issue of fact in the medical malpractice cause of action because she did not "present expert medical testimony regarding the issue of medical standard of care and causation." As to defendant Chiu, the court deemed the motion for summary judgment to be a motion for summary adjudication of issues and granted the motion as to the first cause of action, medical malpractice. The court found Chiu established that his conduct "did not fall below the standard of care ...