Judge: Anne Hwang, Case: 21STCV25689, Date: 2023-08-04 Tentative Ruling

Case Number: 21STCV25689    Hearing Date: August 4, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
3. Declaration of Yee Lam, Esq.
4. Declaration of John D. Hofbauer, M.D.

BACKGROUND

Plaintiff Rashyn Reynolds (“Plaintiff”) filed a second amended complaint alleging one cause of action of negligent infliction of emotional distress caused by Defendant Si Pokpongkiat, O.D. (“Defendant”). Plaintiff alleges that she “suffers anxiety, humiliation, anger, fear, undue duress and infliction of emotional distress due to the defendants actions, which plaintiff had to seek therapy for,” that she “continues to fear the long term effect minor child will suffer from wearing wrongly prescribed eye glasses for an extended amount of time,” and “fear[s] retaliation of DCFS having knowledge of the wrongly prescribed glasses to minor child.”  (Second Amended Complaint, at pg. 2.)  Defendant moves for summary judgment.  Plaintiff has not filed an opposition.   

LEGAL STANDARDS – SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

Plaintiff asserts negligent infliction of emotional distress (“NIED”).  Defendant brings this motion for summary judgment on the grounds that he did not owe a duty to Plaintiff, the corrective eyeglasses prescribed to Plaintiff’s son met the standard of care, and that no breach by Defendant caused any injury or harm to Plaintiff.

 “NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages. The distinction between the “bystander” and the “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff.  “Bystander” claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a “direct victim” arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.”  (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned up].)  “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”  (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

The Court finds that Defendant has met his burden for summary judgment.  Defendant puts forth the following evidence:

Plaintiff brought her son to Defendant on November 29, 2019 for an eye exam and informed him that her son had previously failed a visual acuity test with his primary care physician.  (Hofbauer Decl. ¶ 3.)  Defendant examined Plaintiff’s son and advised Plaintiff that her son had mild myopia or shortsightedness with light sensitivity, and based on the diagnosis, Defendant recommended tinted lenses with a particular optometric prescription.  (Id. ¶ 3.) Within a reasonable degree of medical probability, Defendant’s eye exam and prescription for eyeglasses were appropriate and within the standard of care.  (Id. ¶ 4.)  Moreover, the eye exam and prescription for corrective eyeglasses did not cause Plaintiff’s son to suffer any injury, as the records indicate that the prescription was appropriate given the complaints and clinical condition. (Id. ¶ 5.)

The evidence shows that Defendant complied with the applicable standard of care and that Defendant did not cause Plaintiff to suffer any injury because Defendant’s treatment did not cause her son any injury.  This meets Defendant’s initial burden of showing there is no triable dispute of material fact.  The burden then switches to Plaintiff to put forth evidence that there is a triable issue of material fact.  However, as Plaintiff has not filed an opposition, the burden is not met.

Thus, summary judgment is granted.

CONCLUSION AND ORDER

Defendant Si Pokpongkiat’s Motion for Summary Judgment is GRANTED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.