Judge: Audra Mori, Case: 21STCV11843, Date: 2022-11-07 Tentative Ruling

Case Number: 21STCV11843    Hearing Date: November 7, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff John Cowley (“Plaintiff”) filed this action against Defendants David Ganji, D.M.D., erroneously named herein as Dr. David Ganji (“Ganji”), and Ganji DMD Dental Corporation, erroneously named herein as Ganji Dental, (collectively, “Defendants”) for medical malpractice arising out of Defendants’ extraction of two of Plaintiff’s wisdom teeth.  The complaint alleges that on July 21, 2020, Plaintiff presented to Defendants for extraction of the wisdom teeth, and that after extracting an upper wisdom tooth “in an extremely violent manner,” Ganji attempted to extract a lower wisdom tooth in the same manner but was unsuccessful.  (Compl. ¶ 5.)  Ganji gave up his efforts, and as Plaintiff was being removed from the dental chair, Plaintiff began to bleed profusely.  (Id. at ¶¶ 6-7.)  Defendants then attempted, unsuccessfully, to stop the bleeding, and Plaintiff required hospitalization as a result.  (Id. at ¶¶ 8-12.) 

Defendants now move for summary judgment on the complaint.  Any opposition to the motion was due on or before October 24, 2022.  To date, no opposition has been filed.

2. Motion for Summary Judgment

Defendants contend their care and treatment of Plaintiff complied with the standard of care at all times, and that no negligent act or omission by Defendants caused or contributed to Plaintiff’s alleged injuries.  Defendants submit the Declaration of Robert Hale, D.M.D. (“Dr. Hale”) in support of their motion, who opines that Defendants acted within the standard of care in their treatment of Plaintiff, and that to a reasonable degree of medical probability, did not cause or contributed to Plaintiff’s injuries.  (Mot. Dr. Hale Decl. ¶¶ 8, 25-27.)

Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law.  (Code of Civil Procedure § 437c (c).)  A “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.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains.  (Id. at 850-851.)

Defendants support their motion with the expert declaration of Dr. Hale, which was erroneously filed as one of two “Declarations of Cathy Chittenden, Esq.”  Dr. Hale opines that all the care and treatment provided by Defendants to Plaintiff complied at all times with the applicable standard of care for dentists and oral maxillofacial surgeons, and that to a reasonable degree of medical probability, no negligent act or omission by Defendants caused or contributed to Plaintiff’s alleged injuries.  (Mot. Dr. Hale Decl. ¶¶ 25-26.)

In forming this opinion, Dr. Hale states that he reviewed the evidence “identified in the Declaration of Sherry M. Gregorio, Esq., as follows: Exhibit C - medical records from David Ganji, D.M.D.; Exhibit D - medical records from Little Company of Mary Hospital; and Exhibit E - medical records from Myles Minoe Morimoto, D.D.S.”  (Id. at ¶ 7.)  The Court cannot locate a declaration submitted from a Sherry M. Gregorio, Esq.  Rather, the only declaration filed with the motion, aside from Dr. Hale’s, is the actual Declaration  of Cathy A. Chittenden, Esq. (“Chittenden”).  Chittenden’s declaration does not adequately authenticate all the medical records submitted with Defendants’ Separate Volume of Documentary Evidence.  While Exhibit D therein- medical records from Little Company of Mary Hospital- contains a certification by a medical record production representative, no such certification or declaration is attached to the medical records submitted as Exhibits C and E, nor does Chittenden establish she has sufficient personal knowledge to authenticate Plaintiff’s medical records.

Therefore, Dr. Hale’s declaration is insufficient to meet Defendants’ moving burden.  (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-43 [the opinion of a medical expert based upon medical records that have not been authenticated and admitted into evidence has no evidentiary value]; see also Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1418 [” ‘Generally speaking, documents must be authenticated in some fashion before they are admissible in evidence.’ “], and People v. Sanchez (2016) 63 Cal.App.4th 665, 686 [“What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].)  However, as the motion is unopposed, the motion will be continued if Defendants appear at the hearing and represent the above evidentiary defects can be cured. 

The hearing on the motion is continued 90 days to _________________.  Defendants must file and serve any necessary documents curing the above defects at least 75 court days before the continued hearing date pursuant to CCP § 437c(a)(2).  Plaintiff may file any opposition at least nine days before the hearing.   Further, the Final Status Conference and Trial in this matter are continued for at least 30 days after the hearing on the motion for summary judgment, with the discovery and motion cutoffs following the new trial date.  The new FSC Date is ___________ at 10:00 a.m., and the new trial date is _________ at 8:30 a.m.  

Moving Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 7^th day of November 2022