Judge: Anne Richardson, Case: 20STCV05887, Date: 2023-08-04 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV05887    Hearing Date: August 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings Framing Motion

Plaintiff Kathy Rentie sues Defendants V. Dean Salo D.D.S., Inc., dba Personal Dental Office, Dean Salo D.D.S. (Dr. Salo), and Does 1-20 pursuant to a June 10, 2021 Complaint alleging a single claim of Medical Malpractice.

The claim arises in whole from allegations that “Defendants negligently performed dental treatment below the standard of care” and that “Plaintiff discovered the facts constituting the malpractice less than one year prior to the date this action was filed,” leading to “wage loss,” “hospital and medical expenses,” “general damages,” and “loss of earning capacity.” (The opposition to the present motion argues that all the dental work provided by Defendants to Plaintiff from 2006 to 2019 failed and has either been removed or is planned to be removed.)

The action was originally assigned to Department 27 of the Personal Injury Court at the Spring Street Courthouse.

Motion for Summary Judgment

On June 10, 2022, Defendants Personal Dental Office and Dr. Salo (Defendants) moved for summary judgment of the Medical Malpractice claim. The motion was set for hearing on May 3, 2023.

On April 19, 2023, Plaintiff Rentie opposed the motion.

At the August 4, 2023 hearing for Defendants’ motion, they provided a copy of their April 28, 2023 reply to the April 19th opposition.

Reassignment

On April 28, 2023, Department 27 determined that this action is complicated and, at the direction of Department 1, transferred and reassigned this action to Department 40 at the Stanley Mosk Courthouse. Department 27 also advanced and vacated the hearing on the summary judgment motion.

On May 2, 2023, Department 40 (the Court) issued a Notice of Case Management Conference (CMC) for June 9, 2023.

On June 9, 2023, the Court scheduled the summary judgment motion hearing for August 4, 2023 and a jury trial for May 21, 2024.

Present Hearing

On August 4, 2023, the Court heard arguments as to Defendants’ motion. Defense counsel argued, and Plaintiff’s counsel conceded, that Defendants served a copy of their reply to Plaintiff on April 28, 2023, though Defendants failed to file a copy of the same with the Court. The Court took the matter under submission, permitting Defendants to file their reply with the Court so the Court could make its determination as to this motion on the merits, and continued the hearing to August 9, 2023.

Evidentiary Objections

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Here, no standalone objections to evidence were made by Plaintiff Rentie in opposition to the summary judgment motion, and no objections were attached to the reply shared with the Court, for which reason no evidentiary objections are before the Court.

To the extent that Plaintiff, in her opposition and/or separate statement, makes objections to Defendants’ separate statement or evidence, the Court OVERRULES such objections for failure to follow California Rules of Court, rule 3.1354. (See Opp’n, pp. 3-4 [objection to separate statement]; see, e.g., Opp’n, Sep. St., Response to UMF No. 7 [objection to UMF and evidence].)

Motion for Summary Judgment

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, questioned by dictum in Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [finding that summary adjudication may be granted as to separate factual grounds supporting a claim stated as a single count because the separate grounds state a separate cause of action].) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

I.

First Cause of Action, Medical Malpractice: DENIED.

The elements of medical malpractice are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696, 701-702, citations omitted.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.)

Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 984-985, citations omitted.) An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal. App. 3d 988, 999.)

The first cause of action alleges, in whole, that “Defendants negligently performed dental treatment below the standard of care” and that “Plaintiff discovered the facts constituting the malpractice less than one year prior to the date this action was filed.” (Complaint, p. 4.)

Defendants’ motion argues that this cause of action fails on summary judgment for two reasons. The first argument in support of summary judgment is that Defendants’ treatment of Plaintiff Rentie met the standard of care, for which reason there was no breach of the relevant standard of care. (Mot., pp. 10-12 [referencing Mot., Separate Statement (Sep. St.), Undisputed Material Fact (UMF) Nos. 3-8, 10].) The second argument is that any injuries suffered by Plaintiff Rentie were not caused by Defendants. (Mot., pp. 12-14 [referencing Mot., Sep. St., UMF Nos. 7-12].)

In opposition, Plaintiff Rentie argues that Defendants have failed to carry their initial burden on breach of standard of care and causation and that triable issues of material fact exist as to breach of the standard of care and causation. (Opp’n, pp. 5-9.)

Each ground advanced by Defendants and Plaintiff’s corresponding responses are analyzed separately.

A. Breach of Standard of Care

A review of Defendants’ UMF Nos. 3 to 8 and 10—which support their standard of care argument—shows that they, in relevant part, summarize the procedures performed on Plaintiff’s teeth, present such treatment as within the standard of care or explain that any harm to the treatment was the result of Plaintiff engaging in conduct that harmed the dental work—poor oral hygiene, sporadic treatment, adverse effects of medication intake, and cigarette smoking, among others—and refer to the declaration of an expert in support of these points. (See Mot., Sep. St., UMF Nos., 3-8, 10 [referencing in relevant part Mot., Lieberman Decl., ¶¶ 4-26, Ex. A pp. 007-034 [dental records].) A review of the Lieberman declaration provides sufficient background to determine that Mark Lieberman, D.D.S. may qualify as an expert for the purposes of this motion. (See Mot., Lieberman Decl., ¶ 1.) The Lieberman declaration then properly describes why his review of Plaintiff’s medical records show that Defendants acted within the standard of care in treating Plaintiff Rentie, though the declaration could have done more to establish the proper standard of care for each procedure and then describing how the procedure met that standard. (See Mot., Lieberman Decl., ¶¶ 4-26.) The Lieberman declaration also attributes the injuries sustained by Plaintiff to poor oral hygiene, sporadic treatment, adverse effects of medication intake, and cigarette smoking, among other reasons. (Mot., Lieberman Decl., ¶¶ 15, 18-20, 24-25.)

The Court finds this expert evidence suffices to carry Defendants’ burden on summary judgment to show lack of triable issues of material fact as to breach of the relevant standard of care by Defendants.

In opposition, Plaintiff cites to her own expert declaration for the purpose of establishing that “the dental treatment rendered to Plaintiff by Defendants [predisposed Plaintiff] to complication and failure … [by failing to, given Plaintiff’s circumstances,] develop a plan for treatment which, to a degree of medical probability, would have avoided the adverse outcomes experienced by Plaintiff.” (See Opp’n, p. 7 [referencing portions of Opp’n, Jensvold Decl., pp. 2-4]; see also Opp’n, pp. 7-9.) In support, Plaintiff’s responses to UMF Nos. 3 to 8 and 10 refer to the declaration of Plaintiff’s expert at pages 2 to 4. (See Opp’n, Sep. St., Responses to UMF Nos. 3-8, 10 [referencing portions of Opp’n, Jensvold Decl., pp. 2-4].) A review of the Jensvold declaration provides sufficient background to determine that James Jensvold, D.D.S. may qualify as an expert for the purposes of this motion. (See Opp’n, Jensvold Decl., ¶ 1.) A review of the Jensvold declaration supports Plaintiff’s position by summarizing why, after reviewing the dental records for Plaintiff Rentie, James Jensvold determined that Defendants acted below the relevant standard of care owed to Plaintiff. (See Opp’n, Jensvold Decl., ¶¶ 2-11.)

Defendants’ reply focuses on two points: why its expert evidence is sufficient on summary judgment; and why causation is not properly detailed in the expert declaration from James Jensvold, D.D.S. (See Reply, pp. 2-3 [arguing why expert evidence supporting Defendants’ motion is sufficient], 4-7 [arguing that Jensvold declaration fails to show triable issue of material fact as to causation].) The Court finds that Defendants fail to rebut the Jensvold declaration insofar as Jensvold takes the position that Defendants’ conduct amounted to breaches of the relevant standard of care.

The Court thus finds that the Jensvold expert evidence suffices to carry Plaintiff’s burden on summary judgment to show triable issues of material fact remain as to breach of the relevant standard of care by Defendants.

Summary judgment therefore cannot be granted on this ground.

B. Causation

A review of Defendants’ UMF Nos. 7-12—which support their lack of causation argument—shows that they, in relevant part, summarize the reasons why Plaintiff’s own conduct—e.g., poor oral hygiene, sporadic treatment, adverse effects of medication intake, and cigarette smoking, among others—is the causal factor for Plaintiff’s injuries. (See Mot., Sep. St., UMF Nos. 7-12 [referencing Mot., Lieberman Decl., ¶¶ 5, 15, 17-19, 20, 22, 24-26].) A review of the Lieberman declaration shows that this expert determined that his professional experience indicates to him that the injuries sustained by Plaintiff were not caused by Defendants’ negligence, but rather, by Plaintiff’s own conduct in poor oral hygiene, sporadic treatment, adverse effects of medication intake, and cigarette smoking, among other reasons. (See Mot., Lieberman Decl., ¶¶ 5, 15, 17-19, 20, 22, 24-26.)

The Court finds this expert evidence suffices to carry Defendants’ burden on summary judgment to show lack of triable issues of material fact as to Defendants having caused Plaintiff’s injuries. If Plaintiff’s conduct rather than Defendants’ negligence led to her injuries, Defendants cannot be liable.

In opposition, Plaintiff cites to her own expert declaration for the purpose of establishing that Defendants conduct did in fact cause Plaintiff’s injuries, i.e., “the subsequent removal of all of her implants and her need for surgical correction by Dr. Sedler.” (Opp’n, p. 2.) In support, Plaintiff’s responses to UMF Nos. 7 to 12 refer to the declaration of Plaintiff’s expert at pages 2 to 4. (See Opp’n, Sep. St., Responses to UMF Nos. 7-12 [referencing portions of Opp’n, Jensvold Decl., pp. 2-4].) A review of the Jensvold declaration supports Plaintiff’s causation argument by explaining the specific reasons why his expert opinion is that Defendants’ conduct caused the injuries claimed by Plaintiff, e.g., failure to take into account Plaintiff’s life circumstances when determining the appropriate care for Plaintiff’s teeth. (See Opp’n, Jensvold Decl., ¶¶ 8-11; see also Opp’n, Jensvold Decl., ¶¶ 2-7.)

In reply, Defendants argue that the Jensvold declaration fails to raise triable issues of material fact as to causation of damages because “Dr. Jensvold makes leap[s] of logic regarding the alleged breach of the standard of care and the [P]laintiff’s alleged injuries without explaining how those alleged breaches caused the injuries and what other alternative causations there could be.” (Reply, p. 5.) The reply goes into further detail as to why examples of breach of the standard of care raised by James Jensvold do not show causation between Plaintiff’s injuries and Defendants’ conduct, and further argues that any injuries suffered by Plaintiff were “due to her own medication and smoking history, delay in proceeding with treatment, and non-compliance with medical instructions.” (See Reply, pp. 5-6.)

The Court finds that the Jensvold declaration sufficiently carries Plaintiff’s burden on summary judgment to show triable issues of material fact remain as to Defendants having caused Plaintiff’s injuries. Specifically, the Court finds that triable issues of material fact remain as to whether, in treating Plaintiff between 2006 and 2019, Defendants failed to properly account for Plaintiff’s life habits and intake of medicine—i.e., poor oral hygiene, sporadic treatment, adverse effects of medication intake, and cigarette smoking, among others—in determining the appropriate approach to Plaintiff’s dental care, thus causing her injuries. If a breach of the standard of care can arise from such circumstances, then it is clear to the Court how that breach could cause Plaintiff’s injuries.

The Court also notes that the reply does not sufficiently tie Plaintiff’s life circumstances to authority finding that a failure to account for a patient’s life circumstances cannot amount to a breach of the relevant standard of care, or that Defendants’ failure to take such circumstances into account does not rise to an actionable level. (See Reply, pp. 4-5 [authority cited there relates to whether evidence adequately shows a reasonable medical probability of causation, not whether failure to account for a patient’s life circumstances in establishing a regimen of care is never a breach of the relevant standard of care].) To the extent that Defendants argue that the Jensvold declaration does not properly account for “what other alternative causations there could be” (Reply, p. 5), the Court finds this argument unavailing. The Jensvold declaration does enough to show a triable issue of material fact as to breach of the standard of care by Defendants through failure to account for Plaintiff’s life circumstances and causation of damages to Plaintiff therethrough.

The Court recognizes that there is only so much a doctor can do to advise a patient on preventative care and the negative consequences of failing to adhere thereto. On the other hand, Dr. Jensvold opines that Dr. Salo’s failure to consider those factors and alter his treatment plan, as well as the manner in which he provided treatment, fell below the standard of care. (See Opp’n, Jensvold Decl. at ¶ 9.) The Court finds that one or more triable issues of material fact exist precluding summary judgment.

Summary judgment of the Complaint’s sole cause of action—Medical Malpractice—is therefore DENIED. 

Conclusion

Defendant Dean Salo, D.D.S.’s and V. Dean Salo D.D.S., Inc.’s Motion for Summary Judgment is DENIED.