The opinion
Filed 10/2/25 Zajac v. Liau CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RICHARD ZAJAC, B334798
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV33144)
v.
LINDA LIAU M.D.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lisa K. Sepe-Wiesenfeld, Judge. Reversed.
Workman Law & Litigation and Seth E. Workman for
Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Amy E. Rankin;
Kelly Trotter & Franzen, John C. Kelly and Steven Joseph
Wysocky for Defendant and Respondent.
INTRODUCTION
In this case based on medical negligence, defendant Linda
Liau, M.D., moved for summary judgment on the sole basis that
causation for plaintiff Richard Zajac’s injury could not be
determined to a reasonable degree of medical probability. The
trial court granted the motion on the basis that Zajac’s expert
witness, an anesthesiologist, was not qualified to opine about the
standard of care expected of a neurologist such as Liau, and
therefore Zajac failed to meet his burden to show a triable issue
of material fact.
We reverse. Liau’s motion for summary judgment was very
narrow, and she met her burden on summary judgment by
negating only the element of causation. To defeat summary
judgment, Zajac needed only to demonstrate a triable issue of fact
as to causation. He did so. Liau’s motion for summary judgment
therefore should have been denied.
FACTUAL AND PROCEDURAL BACKGROUND
Zajac sued Liau and others relating to a surgery. The
complaint is not in the record on appeal. According to the
undisputed facts relevant to Liau’s motion for summary
judgment, Zajac had surgery on September 18, 2018 at Ronald
Reagan UCLA Medical Center “for craniotomy for resection of a
recurrent glioma, which is a type of brain tumor.” Zajac suffered
a severe brain injury causing disability.
The parties agree that Zajac’s third amended complaint
included two causes of action against Liau: medical negligence
and dependent adult abuse. The defendants—Liau, Andrew
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Hudson, M.D., and the Regents of the University of California—
moved for summary judgment.1
A. Motion for summary judgment
Defendants’ motion for summary judgment stated that
Zajac, age 24, had surgery on September 18, 2018 “for
reoperation on a low-grade glioma brain tumor.” Zajac then
“suffered from diffuse ischemic changes in the brain.”
Defendants do not define these terms.2 Defendants argued that
“the mechanism of the ischemic changes and associated alleged
brain injury cannot be identified within a reasonable degree of
medical probability.”
Defendants noted that Zajac’s operative complaint alleged,
“As a result of negligent operative and post-operative care, as
managed by the lead neurosurgeon, Defendant Dr. Liau, and lead
anesthesiologist, Dr. Hudson, Plaintiff suffered a severe brain
injury that has caused substantial and permanent disability.”
Defendants asserted that “no causal relationship can be
established between the alleged medical negligence and/or
alleged dependent adult abuse” and Zajac’s injuries. They
reiterated that “it is the element of causation that defendants
challenge by way of this motion.”
1 A fourth defendant, Albert Lai, M.D., also moved for
summary judgment, but he was not involved in Zajac’s surgery or
related care. Zajac’s claims against him are not relevant to this
appeal.
2 Much of the record and briefing in this case includes
medical jargon without plain-language explanations. We quote
the parties’ phrasing as it appears in the record and briefs.
3
Defendants submitted the declaration of Arun P. Amar,
M.D., a neurosurgery expert.3 Amar stated that based on his
review of Zajac’s medical records, Zajac “suffered from diffuse
ischemic changes in the brain; however, the mechanism of same
is unclear and I do not believe any specific cause can be identified
within a reasonable medical probability.” Amar stated that he
considered hypotension, hypoxia, seizure activity, and
hemorrhage as potential causes, but ruled each of these out
because they were not supported by the medical records. Amar
also stated that “given the fact that the patient was able to be
successfully extubated during the surgery, with the ability to
cooperate and speak while Dr. Liau operated on the ‘speech area’
of the brain, it is evident the patient was free of injury at that
point.” Thus, “the cause of plaintiff’s alleged injury remains
unclear and is unable to be determined within a reasonable
degree of medical probability.” Amar concluded, “Accordingly, it
is my conclusion that there is no credible evidence to suggest that
any act or omission by any of the defendants herein, either
individually or collectively, contributed to plaintiff’s injury,
within a reasonable degree of medical probability.”
Defendants argued that Amar’s declaration established
that there was no “causal connection” between defendants’
conduct and Zajac’s injuries, and therefore Zajac could not
establish either his medical negligence cause of action or
3 Defendants’ motion states that four exhibits are attached:
Amar’s curriculum vitae, Zajac’s medical records that Amar
reviewed, Zajac’s third amended complaint, and defendants’
answer to that complaint. These exhibits are not included in the
record on appeal. Some of Zajac’s medical records are included in
the record with Zajac’s opposition.
4
dependent adult cause of action. They asserted that the motion
should be granted because no “act or omission by any of the
defendants . . . contributed to plaintiff’s injury.”
B. Opposition
Zajac argued in his opposition that “Defendants’ motion for
summary judgment completely misses the mark in this case.
Plaintiff’s claims are not limited to the initial injury to his brain.
Well within Plaintiff’s claims are allegations that Defendants
were negligent in their diagnosis, care, and treatment of Plaintiff.
This obviously includes diagnosis and treatment of symptoms
arising during the subject surgery on September 18, 2018. . . .
Defendants failed to properly diagnose and treat Plaintiff for
ischemic brain injury despite repeated indications of ongoing and
worsening ischemic brain injury. In fact, Defendants allowed
three critical hours to pass before any steps were taken to
actually stop or decrease the ischemic death of brain tissue.”
Zajac argued that summary judgment must be denied because
“Defendants clearly and undisputedly failed to properly treat
Plaintiff after the initial injury while he was still within
Defendants’ care and custody.”
Zajac submitted the declaration of Sara Meitzen, M.D., an
expert anesthesiologist who stated that she was “familiar with
the standard of care for anesthesiologists in the community.”
Based on her review of Zajac’s medical records, she stated that
Zajac was diagnosed with a glioma (tumor) in August 2016, and
underwent surgery in October 2016. In August 2018, Zajac began
participating in a clinical drug trial. In September 2018, Liau
recommended a second surgery.
According to Meitzen, on the day of the surgery at issue a
scopolamine patch was placed on Zajac’s ankle before the
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surgery. “During the surgery, Mr. Zajac was allowed to awaken
for language and motor mapping and tumor excision. Function
was documented as normal upon completion of tumor resection.
Following, Mr. Zajac was anesthetized and reintubated for the
remainder of the surgery.” “[A]t approximately 3:15 p.m. and
just prior to completion of surgery, the neuromonitoring
technician reported periods of EEG attenuation (EEG burst
suppression),” which can be a sign of “ischemic cerebral injury
(brain damage related to poor brain perfusion and oxygen
delivery).”
Meitzen stated that “Dr. Liau was informed of the sudden
EEG burst suppression and denied further testing to evaluate for
causation, particularly testing to corroborate the possible
presence of cerebral ischemia.” According to the pre-surgery
plan, Zajac was to be admitted to the neuro intensive care unit
(neuro ICU) following the surgery. However, there were no
available beds in the neuro ICU, so Zajac was transported to the
post-anesthesia care unit (PACU) instead. “Dr. Hudson
extubated Mr. Zajac at 4:09 p.m.”
Meitzen discussed several observations of Zajac’s state of
consciousness and a variety of tests performed on Zajac, including
a CT scan. She stated, “All definitive steps to decrease Mr.
Zajac’s intracranial pressure, and thus improve cerebral blood
flow and oxygen delivery, were not undertaken until after 6:00
p.m., approximately 3 hours after neuromonitoring demonstrated
burst suppression consistent with brain ischemia and
approximately 2 hours after Mr. Zajac’s arrival to the PACU
unresponsive and unconscious.” An MRI was ordered at 6:36
p.m., was completed at 9:51 p.m., and the results were
communicated to “Zajac’s treaters” at 10:36 p.m.; it showed
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“diffuse cerebral edema and findings suggestive of global hypoxic
injury (anoxic brain injury).” Zajac was then admitted to the
neuro ICU and “treated for global hypoxic brain injury.” “An
exhaustive workup for the etiology of Mr. Zajac’s diffuse
postoperative cerebral edema and anoxic brain injury was
negative. An exhaustive workup for infectious etiology, including
syphilis, HIV and herpes, was also negative.”
Meitzen’s declaration stated that after Zajac was
discharged on October 11, 2018, he “was noted to have several
impairments, including but not limited to severe dysarthria and
unintelligible speech, significant dysphagia (difficulty swallowing
safely), ambulation difficulties with shuffling gait requiring
maximal assistance, and impaired balance.” She continued, “Mr.
Zajac now has several impairments, including but not limited to
severe limitations with his previous form of employment given
his ongoing difficulty with speech and fine motor skills, inability
to lift objects of over 5 pounds, and chronic pain and spasticity in
his extremities.”
Meitzen opined that “Defendants, Dr. Hudson, Dr. Liau,
and Regents were negligent in their provision of medical care to
Mr. Zajac.” She continued, “Specifically, Dr. Liau and Dr.
Hudson failed to investigate Mr. Zajac’s EEG changes indicating
hypoxic brain injury. Regardless of the initial cause of ischemia,
the standard of care required immediate action to optimize brain
perfusion . . . .” She stated, “[I]t is my professional opinion to a
reasonable degree of medical probability that . . . Dr. Liau did not
perform a neurological exam timely following the extubation of
Mr. Zajac and therefore fell below the standard of care. . . . In this
case, failure to perform a timely neurological exam led to
prolonged impaired blood flow to Mr. Zajac’s brain and severe
7
injury.”4 In addition, “Dr. Liau deviated from the standard of
care in not promptly ordering an arterial blood gas during the
initial signs of unconsciousness and hypoventilation, which
further caused severe brain injury to Mr. Zajac.” She further
stated, “[I]t is my professional opinion, to a reasonable degree of
medical probability, that the complications that Mr. Zajac
suffered during and after his craniotomy with tumor resection on
September 18, 2018, are directly causally related to the
negligence of Defendants, Dr. Hudson, Dr. Liau, and Regents.”
Meitzen opined that “had Defendants complied with the
applicable standard of care, Mr. Zajac’s prognosis would have
been significantly better.”
Zajac noted in his opposition that Meitzen opined that
defendants’ actions were substantial factors in causing his injury,
including the exacerbation of harm caused by the delay in
treatment of the initial injury. Zajac argued that Meitzen’s
opinion established a triable issue of material fact, so defendants’
motion should be denied.
C. Reply
In their reply, defendants conceded that Zajac established a
triable issue of material fact as to Hudson and Regents, but
argued that summary judgment should be granted in favor of
Liau. They noted that Meitzen was an anesthesiologist, and in
her declaration stated that she was familiar with the standard of
care for anesthesiologists—not neurosurgeons. In addition,
Meitzen did not “state in her declaration she has either
performed, observed, or otherwise participated in any part of the
4 Meitzen also provided opinions specific to other defendants’
treatment of Zajac, which are irrelevant to this appeal and
therefore not included in this summary.
8
treatment of a glioma. These omissions render the declaration
entirely inapplicable as to neurosurgeon Dr. Liau, requiring the
motion to be granted.” Defendants argued, “Where Dr. Meitzen
has never performed neurosurgery, is not qualified to perform
neurosurgery, and lacks all training and education in neuro-
oncology or neurosurgery, her opinions simply lack foundation
and are speculative.”
Defendants also submitted written objections to Meitzen’s
declaration, asserting that her opinions were speculative and
lacked foundation, citing Evidence Code sections 351, 801, 802,
and 1400.) They made nine separate objections, including one
objection to the declaration as a whole, but each objection stated
as its sole basis that Meitzen “is an anesthesiologist and not a
neurosurgeon. She professes no familiarity with the standard of
care of a neurosurgeon, and lacks the requisite education,
training, and experience to offer any such opinion.”
D. Ruling
The trial court issued a tentative ruling granting the
motion for summary judgment for Liau. After a hearing, the
court took the matter under submission.
The court issued a written ruling granting the motion for
summary judgment for Liau. The court stated that Amar’s
declaration stated that defendants’ action did not cause or
contribute to Zajac’s injuries, which “allows Defendants to meet
their burden of establishing that there is no triable issue of
material fact as to Plaintiff’s medical malpractice and dependent
adult abuse claims because Defendants did not cause Plaintiff’s
harm.” In opposition, “as to the claims against Dr. Liau, there is
no evidence that allows the Court to conclude that [Meitzen], an
anesthesiologist, is qualified to render an opinion on the standard
9
of care of a neurologist.” The court discussed legal authority
pertaining to expert qualifications, then stated, “Defendants note
that Dr. Meitzen states no knowledge, learning, or skill with
neurosurgery, what tests should be administered or what may be
required as to the standard of care of a brain surgeon. The Court
is not persuaded by Plaintiff's argument and her opinion as to Dr.
Liau must be excluded from evidence, as she is unqualified to
render an opinion as to the standard of care applicable to Dr.
Liau, such that Plaintiff has failed to sufficiently create a triable
issue of material fact as to Plaintiff’s claims against Dr. Liau.”
The court then stated, “Defendants have established there
is no triable issue as to whether Dr. Liau caused Plaintiff’s harm,
and Plaintiff has failed to provide competent evidence to
establish that Dr. Liau caused Plaintiff’s harm.” The court also
sustained defendants’ objections to Meitzen’s opinions “in their
entirety” “as they relate to” Liau.
The court entered judgment in favor of Liau. Zajac timely
appealed.
DISCUSSION
Zajac asserts two arguments on appeal. First, he contends
Liau’s motion failed to shift the summary judgment burden, so
the motion should have been denied. Second, he argues the trial
court erred in granting the motion after sustaining defendants’
objection to Meitzen’s declaration. We find that defendants’
motion and evidence were sufficient to shift the burden as to the
element of causation. Zajac’s opposition and evidence were
sufficient to demonstrate a triable issue of fact as to causation.
The motion therefore should have been denied.
“On appeal from a summary judgment, we review the
record de novo to determine whether triable issues of material
10
fact exist.” (Carver v. Volkswagen Group of America, Inc. (2024)
107 Cal.App.5th 864, 877.) We do so by “viewing the evidence in
the light most favorable to the plaintiff as the losing party and
resolving any evidentiary doubts or ambiguities in [the plaintiff’s]
favor.” (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16
Cal.5th 611, 620.) We review the trial court’s evidentiary rulings
on summary judgment for abuse of discretion. (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 852.)
A defendant moving for summary judgment bears the
burden of proving that “there is no triable issue as to any
material fact.” (Code Civ. Proc., § 437c, subd. (c).) A defendant
may meet this burden by demonstrating that “one or more
elements of the cause of action . . . cannot be established.” (Id.,
subd. (p)(2).) If the defendant meets that burden, “the burden
shifts to the plaintiff . . . to show that a triable issue of one or
more material facts exists as to the cause of action.” (Ibid.)
Zajac asserts that Liau moved for summary judgment “on
the sole basis that her retained expert could not determine the
cause of [Zajac’s] initial injury during the subject surgery.” Zajac
argues that this was not sufficient to address all of his
allegations, because he also alleged that Liau failed to properly
take action after the initial signs of injury, including by failing to
have Zajac moved to the neuro ICU and by delaying treatment.
Zajac contends that because the motion and Amar’s opinion
addressed only the initial cause of the injury, not any treatment
thereafter, Liau “did not set forth evidence that addressed all
claims against her,” and did not shift her summary judgment
burden.
Typically, “[t]he first step in reviewing a [ruling on a]
motion for summary judgment is to ‘identify the issues framed by
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the pleadings’ because the motion must show ‘there is no factual
basis for relief on any theory reasonably contemplated by the
opponent’s pleading.’” (Diamond v. Schweitzer (2025) 110
Cal.App.5th 866, 878.) We are prevented from doing so here,
because Zajac did not include his operative complaint in the
record on appeal. The appellant bears the burden of providing an
adequate appellate record, and failure to provide an adequate
record on an issue requires that the issue be resolved against the
appellant. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Thus, to
the extent there is any lack of clarity about what Zajac alleged,
that issue must be construed against Zajac.
The parties agree that Zajac alleged causes of action for
medical negligence and dependent adult abuse. Causation is an
element of each of these claims. “‘The elements of a cause of
action for medical malpractice are: (1) a duty to use such skill,
prudence, and diligence as other members of the profession
commonly possess and exercise; (2) a breach of the duty; (3) a
proximate causal connection between the negligent conduct and
the injury; and (4) resulting loss or damage.’” (San Antonio
Regional Hospital v. Superior Court (2024) 102 Cal.App.5th 346,
350 (San Antonio).) Assuming the dependent adult abuse cause
of action was alleged under the Elder Abuse and Dependent
Adult Civil Protection Act, Welfare and Institutions Code, section
15600 et seq., such a claim requires, in part, that the plaintiff
“allege (and ultimately prove by clear and convincing evidence)
that the neglect caused the elder or dependent adult to suffer
physical harm, pain or mental suffering.” (Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,
407.)
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“The law is well settled that in a personal injury action
causation must be proven within a reasonable medical
probability based upon competent expert testimony.” (Jones v.
Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)
Thus, if Liau’s motion demonstrated that her actions did not
cause Zajac’s harm, she met her initial summary judgment
burden to show that “one or more elements of [Zajac’s] cause of
action . . . cannot be established.” (Code Civ. Proc., § 437c, subd.
(p)(2).)
The motion, with Amar’s declaration, met this burden with
respect to the element of causation. Amar stated that the cause
of Zajac’s brain injury could not be determined, and there was “no
credible evidence to suggest that any act or omission by any of
the defendants herein, either individually or collectively,
contributed to plaintiff’s injury.”
Zajac argues that the initial injury was only “one basis of
relief” asserted, and Liau’s motion for summary judgment failed
to “offer any evidence as to [her] conduct after the signs of
complications arose during surgery.” Although Amar’s
declaration was not particularly detailed, it was broad enough to
address the element of causation throughout Liau’s care. Amar’s
statement that there was no evidence that defendants
“contributed” to Zajac’s injury addressed causation generally, and
based on the limited record before us, was sufficient to meet
defendants’ initial burden to show that the causation element
could not be met. The burden therefore shifted to Zajac.
Zajac met his burden. Meitzen’s declaration stated that
“Dr. Liau and Dr. Hudson failed to investigate Mr. Zajac’s EEG
changes indicating hypoxic brain injury.” Meitzen discussed the
various actions that could have been taken, and stated, “In this
13
case, each of these measures was delayed for hours, leading to
severe brain injury for Mr. Zajac.” She also stated that “Dr.
Hudson and Dr. Liau did not perform a neurological exam timely
following the extubation of Mr. Zajac,” and that “failure to
perform a timely neurological exam led to prolonged impaired
blood flow to Mr. Zajac’s brain and severe injury.” She further
stated that Dr. Liau did not promptly order “an arterial blood gas
during the initial signs of unconsciousness and hypoventilation,
which further caused severe brain injury to Mr. Zajac.” In
addition, she stated that “the complications that Mr. Zajac
suffered during and after his craniotomy with tumor resection on
September 18, 2018, are directly causally related to the
negligence of Defendants, Dr. Hudson, Dr. Liau, and Regents.”
These statements were sufficient to demonstrate a triable issue of
material fact as to whether Liau’s actions caused or contributed
to Zajac’s injuries.
Notably, Liau did not object to Meitzen’s opinions as to
causation. (See Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39 [on
de novo review of a summary judgment, we consider all evidence
submitted except that to which objections were made and
sustained].) Liau’s written objections addressed only Mietzen’s
qualifications to opine as to the standard of care for a
neurosurgeon; Liau did not object to Meitzen’s opinions about
causation or her qualifications to offer such an opinion.
“Evidentiary objections not made at the hearing shall be deemed
waived.” (Code Civ. Proc., §437c, subd. (b)(5).)
At oral argument on appeal, Liau argued for the first time
that a comment made during the summary judgment hearing
should be interpreted as a “clarification” that she also objected to
Meitzen’s qualifications to offer an opinion on causation. We
14
decline to address an argument not included in the parties’ briefs
and raised for the first time at oral argument. (Sheppard,
Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc.
(2018) 6 Cal.5th 59, 87 fn. 10.) Moreover, the comment is not a
clear objection, and we resolve any evidentiary doubts or
ambiguities in the opposing party’s favor. (Bailey v. San
Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 620.) Liau
has thus forfeited any argument that Meitzen was unqualified to
opine as to the cause of Zajac’s injuries.
Zajac therefore met his burden to show a triable issue of
fact as to the element of causation, the only element for which
defendants shifted the burden. As such, the motion should have
been denied. We need not address Zajac’s second contention on
appeal that the trial court erred in sustaining defendants’
objection to the declaration of Meitzen on the grounds that as an
anesthesiologist, Meitzen was not qualified to opine regarding the
standard of care for a neurologist. Defendants’ motion did not
place the standard of care or any breach of that standard into
contention. Thus, Zajac did not have any obligation to produce
competent expert testimony about the standard of care to defeat
summary judgment. (See, e.g., Salasguevara v. Wyeth
Laboratories, Inc. (1990) 222 Cal.App.3d 379, 387.)
15
DISPOSITION
The judgment is reversed. Zajac is entitled to recover his
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J.
TAMZARIAN, J.
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