Judge: Daniel M. Crowley, Case: 20STCV48675, Date: 2022-09-28 Tentative Ruling

Case Number: 20STCV48675    Hearing Date: September 28, 2022    Dept: 28

Defendant Kenneth Mak, DDS’s Motion for Summary Judgment

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On December 21, 2020, Plaintiff Michael Ossmen (“Plaintiff”) filed this action against Defendant Alex D. Lopez, DDS (“Lopez”) for dental malpractice. Plaintiff later amended the complaint to include Defendant Kenneth Mak, DDS (“Mak”).

On April 1, 2021, Lopez filed an answer. On February 28, 2022, Mak filed an answer.

On June 15, 2022, Mak filed a Motion for Summary Judgment to be heard on September 28, 2022. On August 10, 2022, Plaintiff filed a Notice of Non-Opposition.

Trial is scheduled for February 27, 2023. 

PARTY’S REQUESTS

Mak requests the Court grant summary judgment on the basis that the statute of limitations barred his addition, Mak’s treatment always complied with the standard of care and Mak was not the cause of any injuries.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The elements of a cause of action for medical negligence are: (1) duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of duty; (3) 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.) The standard of care that a medical professional is measured by is a matter within the exclusive knowledge of experts; it can only be proven by their testimony, generally. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) Causation must be proven within a reasonable medical probability based on competent expert testimony; “a less than 50-50 possibility that defendants’ omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause.” (Bromme v. Pavitt (1 992) 5 Cal.App.4th 1487, 1504.)

DISCUSSION

Plaintiff alleges that Defendants performed substandard dental care, resulting in injuries to Plaintiff.

Standard of Care

Mak submitted a declaration from Alan R. Stein, DDS, who is a dentist licensed to practice in California, with the applicable education and experience to give an expert opinion (Declaration of Alan R. Stein ¶¶ 2-16.) Based upon Plaintiff’s medical records and Lopez’s deposition, Stein opined that Mak complied with the standard of care at all times. (Stein Decl. ¶¶17, 21.) Mak appropriately reviewed Plaintiff’s treatment history and made proper recommendations for his sinus issues, which presented as a sinus infection post-perforation. (Id.) Mak provided appropriate follow-up examinations and properly consulted with Lopez prior to referring to Plaintiff to a surgeon. (Id.) Although only 4 days had passed since Plaintiff’s procedure, Mak still ceded to Plaintiff’s wishes and provided a referral to an oral surgeon. (Id.) At all times, Mak acted within the standard of care for a dentist within the area. Stein additionally opined that Mak did not cause or contribute to Plaintiff’s injuries. (Stein Decl. ¶ 22.) Mak provided a referral when Plaintiff requested it; the oral surgeon then waited at least a week to perform any surgery. This indicates that symptoms were non-threatening and that there was no rush to operate. (Id.) In total, Mak’s expert establishes that Mak acted within the standard of care and did not cause the damages in question.

Mak has met his burden, which shifts to Plaintiff. As Plaintiff filed a notice of non-opposition, the Court grants summary judgment.

CONCLUSION

Defendant Kenneth Mak, DDS’s Motion for Summary Judgment is GRANTED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.