Judge David A. Rosen, Case 21STCV08471 2023-04-14 Tentative Ruling

Judge: David A. Rosen, Case: 21STCV08471, Date: 2023-04-14 Tentative Ruling

Case Number: 21STCV08471 Hearing Date: April 14, 2023 Dept: E

Hearing Date: 04/14/2023 – 2:00pm

Case No: 21STCV08471
Trial Date: 01/16/2024

Case Name: ASTGHIK DJIKNEYAN, indiv; v. SUSAN CHOBANIAN M.D., and DOES 1-10

TENTATIVE RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendant, Susan Chobanian, M.D.

Responding Party: Plaintiff, Astghik Djikneyan

Proof of service timely filed (CRC 3.1300(c)): Ok

Correct Address (CCP §§ 1013, 1013(a)):Ok

Opposition and Reply Papers submitted

Moving Papers: Motion; Donahue Declaration; Chobanian’s Notice of Lodging Exhibit F; Separate Statement; Proposed Order; Proof of Service; Proposed Judgment

Opposition Papers: Opposition; Separate Statement; Declarations in Support of Opposition

Reply Papers: Reply

75/80 Days

Under 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)

The instant motion appears timely.

30 Days
The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. (CCP §437c(a)(3).)

The instant motion appears timely.

RELIEF REQUESTED
Defendant, Susan Chobanian, M.D. moves this Court for an order granting summary judgment pursuant to CCP §437c as against Plaintiff, stating that his motion is brought pursuant to sections 425.13 and 437c of the CCP and is made on the ground that the undisputed evidence shows that there is no triable issue of material fact with respect to Plaintiff’s Complaint as to SUSAN CHOBANIAN, M.D in that, as a matter of law: (1) the care and treatment provided to ASTGHIK DJIKNEYAN, by SUSAN CHOBANIAN, M.D was, to a reasonable degree of medical probability, at all times appropriate and within the applicable standard of care in the community, including informed consent; and (2) that plaintiff cannot establish, by competent, admissible evidence to a reasonable degree of medical probability, that SUSAN CHOBANIAN, M.D was a cause or contributing factor to the claimed damages. The moving defendant SUSAN CHOBANIAN, M.D is, therefore, entitled to summary judgment.

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.) “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.)

Code of Civil Procedure section 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if all the papers submitted 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. (Code Civ. Proc., § 437c(c).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

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.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) 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.)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP §437c(f)(2).)

ANALYSIS
Preliminary Issue
The original Complaint in this case was filed on 03/03/2021. The original Complaint alleged five causes of action for: (1) Malpractice, (2) Lack of Informed Consent, (3) Lack of Informed Consent, (4) Medical Battery, and (5) Intentional Misrepresentation. On June 1, 2021, the Court ruled on Defendant’s demurrer and motion to strike.

On 6/11/2021, Plaintiff filed a First Amended Complaint. This filing of the FAC was rejected.

In the 7/29/2021 Minute Order, the Court noted that the FAC has not been filed and Plaintiff’s original Complaint filed on March 3, 2021 remains the operative complaint.

On 08/23/2021, Plaintiff filed a Second Amended Complaint, and this SAC was also rejected.

On 9/19/2022, Defendant filed a motion for summary judgment.

The Court notes that the notice page of the motion for summary judgment does not indicate on which complaint Defendant is moving for summary judgment.

To confuse matters more, Defendant’s memorandum on page 3 of Defendant’s MSJ states, “On March 3, 2021, Plaintiff Astghik Djikneyan ("Ms. Djikneyan") filed her Complaint against Defendant Susan Chobanian, M.D. ("Dr. Chobanian"). After demurrer, Ms. Djikneyan then filed a Second Amended Complaint ("SAC") against the same Defendant. The FAC alleges the following causes of action against Dr. Chobanian: (1) lack of informed consent regarding Radiesse; (2) lack of informed consent regarding Hyaluronidase; and (3) medical battery.” (Def. MSJ p. 3.)

This adds further confusion to Defendant’s motion because it refers to both the SAC and the FAC despite the fact that the Court up until this point had stated that the operative complaint was the original complaint. Therefore, it appears that when Defendant moved for summary judgment, whether it was on the FAC or the SAC, neither of those was the operative complaint. It appears as if it is more likely that Defendant was moving as to the SAC because in Defendant’s counsel’s declaration, Donahue attached a copy of the SAC.

On 12/15/2022, the Court noted that the operative complaint was still the original complaint.

On January 13, 2023, Judge Michael E. Whitaker signed a stipulation that stated Plaintiff shall file and serve the proposed Second Amended Complaint within 20 days of the date of this order.

On 1/23/2023, the SAC was filed.

In the 2/28/2023 Minute Order, the Court noted that the counsel orally stipulated in open court to the 2^nd amended complaint filed on 1/23/2023 being used as the operative complaint, and the answer filed on 8/27/2021 is to be used as the operative answer.

Neither the moving papers nor the Opposition papers of the instant MSJ address the issues of whether this Court can hear the instant MSJ despite the fact that Defendant filed the MSJ based on a complaint that was not the operative complaint. Further, it does not appear that either party stipulated to what version of the complaint was the operative complaint for this motion.

Separate Statement
Assuming that Defendant is moving for summary judgment as to the operative SAC, the SAC alleged three causes of action: (1) Lack of Informed Consent, (2) Lack of Informed Consent, and (3) Medical Battery.

“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court Rule 3.1350(d)(1)(A)-(B).)

Here, Defendant did not separately identify each, or any, cause of action in its separate statement. Defendant simply listed 35 alleged undisputed material facts without any indication as to which facts are material to which cause of action. This is in itself grounds for denial of this Motion, but the Court analyzes the merits.

Moving Party’s Burden

Lack of Informed Consent

Here, moving Defendant did not meet its burden in showing that one or more elements of a cause of action for lack of informed consent cannot be established or that there is a complete defense to the action.

First, it is unclear if Defendant is arguing that an element cannot be established or that there is an affirmative defense.

In the moving papers as to Defendant’s lack of informed consent arguments, Defendant did not cite a single case or statute. However, Defendant referred to CACI Jury Instructions 532 and 533.

Defendant argues that CACI 533 sets forth the essential factual elements for a cause of action for failure to obtain informed consent; however, Defendant cites no caselaw to support this argument.

After alleging that CACI 533 sets forth the essential elements, Defendant then states:

To establish this claim, Astghik Djikneyan must prove all of the following:

1. That Dr. Chobanian performed injections of Radiesse and Hyaluronidase on Astghik Djikneyan;

2. That Dr. Chobanian did not disclose to Astghik Djikneyan the important potential results and risks of and alternatives to the injections of Radiesse and Hyaluronidase;

3. That a reasonable person in Astghik Djikneyan's position would not have agreed to the injections of Radiesse and Hyaluronidase if that person had been adequately informed; and

4. That Astghik Djikneyan was harmed by a result or risk that Dr. Chobanian should have explained.

(MSJ p. 8.)

Instead of Defendant then stating which element Plaintiff cannot establish – assuming those elements are actually the elements, a point for which Defendant cited no authority – Defendant then included a paragraph titled “Dr. Chobanian Did Not Fail to Obtain Informed Consent.” In this Paragraph, Defendant states:

As set forth in the declaration of plastic surgery expert David Alessi, M.D., in March of 2018, Ms. Djikneyan consented to injections of Radiesse, a filler, with no reported pain, no swelling, no redness, no hives, no swelling of the lips, tongue, face, eyes or mouth. In March of 2018, Ms. Djikneyan also consented to use of Wydase to attempt to dilute the filler.

After a rhinoplasty in September of 2019 and overseas trip and several follow-up visits at which Ms. Djikneyan requested injections, she returned in June of 2020, discussing use of a filler to try to minimize asymmetry, to which she agreed. On subsequent visits, she consented to injections to attempt to dilute the filler.

She claims that she did not know the precise filler or the precise injection to attempt to dilute the filler. Dr. Alessi unequivocally states that with such agreements, the plastic surgeon is not required as part of informed consent to identify the precise product. Further, as there was no adverse reaction to the prior use of the filler or product to try to dilute the filler, there was no contraindication to use.

(MSJ p.8-9.)

Based on Defendant’s argument, it is entirely unclear on which element Defendant is arguing that Plaintiff cannot establish for a lack of informed consent cause of action. Further, Defendant cited no case law to establish what is considered adequate or a lack of informed consent. Further, Defendant’s motion mentions its alleged expert David Alessi M.D. Nowhere in Defendant’s motion does Defendant explain why an expert is legally relevant for a lack informed consent cause of action. Thus, Defendant did not meet her burden, and Defendant did not shift the burden to Plaintiff.

The Court also notes that a Reply was submitted. The Reply only addressed CACI 533. Confusingly, despite the fact that Defendant’s argument as to lack of informed consent included allegations by an alleged expert, Defendant’s Reply notes how CACI 533 has a reasonable person standard.

Defendant’s motion for summary judgment as to the first and second cause of action as to lack of informed consent is DENIED.

Battery

In Defendant’s motion as to the battery cause of action, Defendant begins its argument with a section titled, “Required Elements of Ms. Djikenyan’s Medical Battery Cause of Action.” In this section, Defendant first refers to two different types of medical battery, citing different examples of battery, but Defendant does not cite the elements of battery. Even more confusingly, despite starting this section by referring to two different types of medical battery, Defendant then goes on to argue that the instant alleged conduct of Defendant did not involve either of the two versions of battery that she previously referred to.

To again confuse matters further, Defendant concludes this section by stating, with zero legal support, “In any event, the allegation is one of medical negligence.”

Then, despite arguing the allegation is one of medical negligence without citing any of the elements of medical negligence, Defendant’s next section is titled “Dr. Chobanian Did Not Medically Batter Astghik Djikneyan.” In this section, Defendant states:

It is undisputed that Ms. Djikneyan consented to receiving injections to her nose. Ms. Djikneyan agreed to injections of fillers and injections of materials to attempt to dilute the filler. The alleged conduct is not one involving performance of "one type of treatment but performs a substantially different treatment." Neither does the case involve "treatment for which consent was obtained and an infrequent complication occurs that the physician failed to disclose.

(MSJ. p.10.)

Therefore, it is entirely unclear what Defendant is arguing, or whether there is any legal support for her argument. Defendant thus did not meet her burden and the burden did not shift to Plaintiff.

Defendant’s motion for summary judgment as to the third cause of action is DENIED.

TENTATIVE RULING
Defendant’s motion for summary judgment is denied in its entirety. Defendant did not meet her burden to negate the existence of triable issues of material fact and thus did not shift the burden to raise such issues to Plaintiff. Defendant did not comply with Cal. Rules of Court Rule 3.1350(d)(1)(A)-(B).) Defendant’s notice of motion also does not indicate on which complaint it is moving for summary judgment.

Triable issues of material fact predominate, including, but not limited to; did Defendant fully inform Plaintiff of all procedures Defendant was planning to perform or likely to perform, and of the materials Defendant would use and introduce?

Did Defendant obtain Plaintiff’s informed consent as to all procedures performed and materials utilized?

Did Defendant intentionally touch Plaintiff without Plaintiff’s consent?