Judge Christopher K. Lui, Case 20STLC06823 2023-03-21 Tentative Ruling

Judge: Christopher K. Lui, Case: 20STLC06823, Date: 2023-03-21 Tentative Ruling

Case Number: 20STLC06823 Hearing Date: March 21, 2023 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendants failed to deliver a Permanent Dental Appliance—the temporary version of which had kept breaking and requiring repair—after Plaintiff filed for bankruptcy, and have refused to refund payments Plaintiff has made.

Defendants The Regents of the University of California, Eric Sung, D.D.S. and Kumar Shah, B.D.S., F.A.C.P. move for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING

Defendants The Regents of the University of California, Eric Sung, D.D.S. and Kumar Shah, B.D.S., F.A.C.P.’s motion for summary judgment is GRANTED.

Motion For Summary Judgment

The Court first addresses Plaintiff’s contention that he was required to be personally served with the motion for summary judgment. There is no basis for this contention in Civ. Proc. Code, § 437c, and Plaintiff’s argument is meritless.

For the reasons discussed below, Defendants have demonstrated that they are entitled to judgment as to all causes of action asserted against them. As such, the motion for summary judgment is GRANTED.

Moreover, Plaintiff’s objection indicating that he should not be deprived of the funds he already paid to Defendant is irrelevant for purposes of the judgment. Plaintiff did not pray for a return of such funds in the Second Amended Complaint. Moreover, the evidence shows that Defendants have issued a check to Plaintiff but Plaintiff has not cashed it, nor responded with a request for a higher amount.

Plaintiff is free to informally negotiate a return of the funds or to sue Defendants to recover the amount in a limited jurisdiction lawsuit.

Motion For Summary Adjudication

Discussion

FIRST CAUSE OF ACTION – NEGLIGENCE – DENTAL MALPRACTICE

Against Defendants Eric Sung and Kamar Shah

1. Issue 1: Defendants are entitled to Summary Judgment or, alternatively, Summary

Adjudication, as to Plaintiff Michael Goland’s cause of action for Negligence –

Dental Malpractice as a matter of law because Defendants met the standard of

care in all aspects of providing care and treatment to Mr. Goland. (Negligence

Element – Duty/Breach).

Plaintiff’s first cause of action alleges that:

26. Sung and Shah breached this duty of care to plaintiff by their refusal and failure to repair the TDA and their failure and refusal to install in the PDA and their abandonment of Plaintiff after they learned that Plaintiff had filed bankruptcy. Sung and Shah also refused and continue to refuse to deliver the two assembled PDA’s to Plaintiff which Plaintiff had previously paid for. Sung and Shah caused the two PDA’s to be fitted in the presence of Attorney Hagen on January 28, 2019. Exhibit 3 contends that the PDA’s never existed. Sung and Shah knew that Plaintiff was and would continue to suffer distress and hardship without the dental implants. Sung and Shah refused to treat Plaintiff due to his bankruptcy discharge and sought to retain the PDA to punish Plaintiff for obtaining a bankruptcy discharge.

(Second Amended Complaint, ¶ 26.)

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. (Citation omitted.)

Because the standard of care in a medical malpractice case is a matter “peculiarly within the knowledge of experts” (citation omitted), expert testimony is required to “prove or disprove that the defendant performed in accordance with the standard prevailing of care” unless the negligence is obvious to a layperson. (Citation omitted.) However, the expert testimony must be based on such matters as may be reasonably relied upon by an expert in forming an opinion on the subject. (Citation omitted.) With regard to a standard of care derived from a professional practice “the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice.” (Citation omitted.)

(Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

As an initial matter, the Court notes that whether or not Plaintiff was late to or cancelled his appointments, and his behavior, is irrelevant to whether Defendants met the applicable standard of care for dental professionals. The Court disregards any such evidence.

The Court summarizes Defendants’ evidence, as presented at UFs Nos. 2 - as follows:

Plaintiff was referred to the graduate prosthodontics program (“Grad Prosth”) for a full mouth rehabilitation, because his case was deemed too complicated for the general practice residency. (UF No. 2; Exh. B, p. 59.) Plaintiff agreed to a maxillary porcelain fused to metal (“PFM”) prosthesis and mandibular fixed bone-anchored bridge (“FBAB”). (UF No. 6; Exh. B, p. 61.) Pending that permanent solution, On April 3, 2012 Plaintiff was fitted with a provisional fixed partial dentures (“PFPD”), and then a changed treatment plan of immediate complete denture with transition to a hybrid denture that would be attached to implants; however, these temporary solutions kept needing adjustments, repairs or replacement over the six years during which Plaintiff was told he should save to pay for the permanent solution, but Plaintiff kept having the temporary PFPD repaired. (UF Nos,. 7, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 22, 24, 25, 26, 29, 30, 31, 32; Exhs. B p. 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72; Exh. C, p. 6, 7, 71, 72, 73, 74, 75, 76, 94, 95 .) Plaintiff never paid in full for the permanent solution, so on May 14, 2019, Dr. Sung sent a discharge letter to Plaintiff, nothing that due to financial difficulties, and an inability to complete his work, the School was unable to meet Plaintiff’s expectations in a satisfactory manner. (UF No. 35; Exh. C, p. 53.) Dr. Sung offered to remove all existing dental work and return Plaintiff back to a baseline of implants with healing caps without prostheses over them, and a full refund on the prosthetic portion of the care for which Plaintiff had paid $6,200 was also offered. (Id.) Dr. Sung also offered emergency care for a period of 30 days from the date of the separation letter, and three reference sources were provided for Plaintiff to seek treatment with another provider. (UF No. 35; Exh. C, p. 53.) On June 6, 2019, a check in theamount of $6,200 was made out and sent to Plaintiff. On September 3, 2019, Jane Boubelik, Chief Counsel of UCLA Health, offered to cancel the check, which had not been cashed and either (1) issue a new check to be sent to the address on record for Mr. Goland unless Mr. Goland made a request that it be sent to another address, or (2) issue a new check that Mr. Goland could personally pick up at the SOD. Neither offer was accepted. (UF No. 36; Exh. D.)

Based upon his knowledge, training, experience, and records reviewed, it is the opinion of Defendants’ expert, Dr. Exler, to a reasonable degree of medical probability, that all of the care and treatment provided to Mr. Goland by the providers at the UCLA School of Dentistry was at all times appropriate and met the standard of care in the community, and he explains his reasoning. (UF No. 38; Exhibit E, Mark Exler, D.D.S., F.A.C.P. ¶¶ 5 - 7.)

The foregoing is sufficient to demonstrate that Defendants did not breach the applicable professional standard of care, which is an element of the cause of action for professional negligence. As such, Defendants have demonstrated that this cause of action has no merit because an element cannot be established. (Civ. Proc. Code, § 437c(p)(2).) The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

In support of his opposition, Plaintiff does not submit a declaration of an expert to raise a triable issue of material fact as to whether Defendants breached the applicable standard of care.

As previously noted, plaintiffs failed to submit the declaration of an expert in opposition to the motion for summary judgment. Accordingly, no triable issue of fact was presented regarding defendants' compliance with the relevant medical standard of care and summary judgment on plaintiffs' cause of action for medical malpractice must be affirmed. "California courts [*985] have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When 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." (Citations omitted.)

(Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 984-85.)

As such, Plaintiff has failed to meet his burden of demonstrating that a triable issue of material fact exists as to the element of breach of duty.

The Court also notes that Plaintiff failed to submit an opposing separate statement, which is an additional ground for granting the motion. (Civ. Proc. Code, § 437c(b)(3).)

The fact that Plaintiff is now in pro per does not excuse him from this burden or complying with § 437c(b). Pro per litigants are not entitled to more favorable or lenient treatment than other litigants or attorneys when it comes to adherence to the California Rules of Court or Code of Civil Procedure. (See Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)

As such, the motion for summary adjudication as to Issue No. 1 re: the first cause of action is GRANTED.

2. Issue 2: Defendants are entitled to Summary Judgment or, alternatively, Summary

Adjudication, as to Plaintiff Michael Goland’s cause of action for Negligence –

Dental Malpractice as a matter of law because no negligent act or omission by

Defendants was the cause of, or a substantial factor in causing, Mr. Goland’s

alleged injuries. (Negligence Element – Causation).

In a matter such as this, where the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. (Citations omitted.) Plaintiff also must show that defendants' breach of the standard of care was the cause, within a reasonable medical probability, of his injury. (Citation omitted.)

(Bushling v. Fremont Med. Ctr. (2004) 117 Cal.App.4th 493, 509.)

Given the ruling on Issue No. 1, the Court deems Issue No. 2 to be MOOT.

SECOND CAUSE OF ACTION – REPLEVIN (CLAIM AND DELIVERY)

Against Defendants Eric Sung, Kumar Shah, and Regents

3. Issue 3: Defendants are entitled to Summary Judgment or, alternatively, Summary

Adjudication, as to Plaintiff Michael Goland’s cause of action for Replevin –

Claim and Delivery as a matter of law because Mr. Goland was never the owner

of the property in question, Plaintiff never had a right of immediate possession,

and the property at issue was never in Defendants’ possession.

The second cause of action alleges as follows:

33. Plaintiff paid for the construction, manufacture and assembly of the TDA and PDA.

34. The two PDA were constructed and assembled and shown to Plaintiff in October, 2018 and on January 28, 2019.

35. The Chapter 7 Trustee abandoned its rights and interest in the PDAs on June 6, 2019.

36. Plaintiff sought to retrieve the PDA from Sung, Shah and the Regents and Does 1-100.

37. Plaintiff is informed and believes that Defendants Sung, Shah, the Regents and Does 1-100 are currently in possession of the two PDAs.

38. Sung, Shah and the Regents have refused and continue to refuse to deliver the PDA to Plaintiff.

39. Plaintiff seeks an order directing Sung, Shah, the Regents and Does 1-100 to deliver Plaintiff’s PDA to Plaintiff forthwith.

(Second Amended Complaint, ¶¶ 34 – 39.)

"In an action in replevin or claim and delivery, being an action for the recovery of specific personal property, in order to sustain a judgment for the plaintiff, it must be shown that possession was in the defendant at the time of the beginning of the action, or that he had the power to make delivery of the personal property for the recovery of which the action is prosecuted."

(Rathbun v. Hill (1933) 129 Cal.App. 601, 606.)

"Appellants' action in this case was one of replevin and, of course, the essential prerequisite to such an action is the right to the immediate and exclusive possession of the property at the time of the commencement of the action (citation [*209] omitted) and hence, if there be any preliminary act or condition precedent to be performed before the unqualified right of possession attaches the action cannot be maintained, and an after-acquired interest will not support replevin. (Citation omitted.)

(Teater v. Good Hope Dev. Corp. (1939) 14 Cal.2d 196, 208-09.)

Here, Defendants’ evidence is set forth at UFs Nos. 39 – 43 as follows:

39. Plaintiff was not entitled to immediate possession of the permanent dental prostheses at the time of commencing this action as he never paid the total cost for the prostheses, and Defendants were not in possession of the subject property at the time this action was commenced. (Exhibit F, Declaration of Kumar Shah, B.D.S., M.S., F.A.C.P. (“Shah Declaration”), ¶¶ 5-7; Exhibit G, Declaration of Paulo M. Camargo, D.D.S., M.S., M.B.A., F.A.C.D. (“Camargo Declaration”), ¶ 4; Exhibit H, Declaration of Eric Sung, D.D.S. (“Sung Declaration”), ¶¶ 2-4.)

40. Mr. Goland’s final prostheses were never completed and therefore, never existed. (Exhibit F, Shah Declaration, ¶¶ 5-7; Exhibit G, Camargo Declaration, ¶ 4; Exhibit H, Sung Declaration, ¶¶ 2-4.)

41. Defendants were, therefore, never in possession of the final prostheses at any point in time, including at the time this lawsuit was commenced. (Exhibit G, Camargo Declaration, ¶ 4; Exhibit H, Sung Declaration, ¶¶ 2-4.)

42. Even if the final prostheses had been fabricated, Plaintiff was never entitled to possession of the property until the necessary fees were paid to the dental school. It is undisputed that the full amount for the final prostheses was never paid at any point in time, including at the time this action was commenced, and plaintiff owed the SOD an additional $15,000, which was never paid. (Exhibit F, Shah Declaration, ¶ 5; Exhibit G, Camargo Declaration, ¶ 4; Exhibit H, Sung Declaration, ¶¶ 2-4.)

42. Even if the final prostheses had been fabricated, Plaintiff was never entitled to possession of the property until the necessary fees were paid to the dental school. It is undisputed that the full amount for the final prostheses was never paid at any point in time, including at the time this action was commenced, and plaintiff owed the SOD an additional $15,000, which was never paid. (Exhibit F, Shah Declaration, ¶5; Exhibit G, Camargo Declaration, ¶4; Exhibit H, Sung Declaration, ¶¶2-4.)

43. Defendants collectively had no obligation to complete Mr. Goland’s final prostheses because he was non-compliant in that he failed to comply with the plan of treatment and failed to pay the cost for the final prostheses. (Exhibit E, Exler Declaration, ¶¶7(a)-(f) and 8.)

The foregoing is sufficient to demonstrate that Defendants did not have possession of any personal property which Plaintiff was entitled to possess, which is an element of the cause of action for professional negligence. As such, Defendants have demonstrated that this cause of action has no merit because an element cannot be established. (Civ. Proc. Code, § 437c(p)(2).) The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists as to this element.

In support of his opposition, Plaintiff does not cite admissible evidence to demonstrate that Defendants had possession of personal property which Plaintiff was entitled to possess. As such, Plaintiff has failed to meet his burden of demonstrating that a triable issue of material fact exists as to the element of breach of duty.

The Court also notes that Plaintiff failed to submit an opposing separate statement, which is an additional ground for granting the motion. (Civ. Proc. Code, § 437c(b)(3).)

The motion for summary adjudication as to Issue No. 3 re: the second cause of action is GRANTED.