Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a medical malpractice case.  Plaintiff Mumtaz Jetha claims that Defendants Laserway Medical Group, Inc. and Laserway, LLC negligently performed a laser hair removal procedure on her face and upper back.  (Compl. ¶16-17.)  Plaintiff claims she suffered second degree burns as a result of the procedure.  (Id. ¶10.)  The operative complaint alleges two claims for negligence and negligent infliction of emotional distress.   

The relevant facts are as follows: On December 1, 2022, Plaintiff received laser hair removal to her neck and face.  (Undisputed Material Fact (“UMF”) No. 2.)  Plaintiff signed consent forms which disclosed risks of the procedure including erythema (inflammation) and edema (swelling). (UMF No. 3.)  The consent form also warned Plaintiff that adverse side effects could last months, years or be permanent.  (Id.)   

The laser hair removal was performed by a trained licensed registered nurse, Nathalie Moreno, R.N.  Prior to treatment, a test spot was done to gauge the patient’s response to the laser, verifying no adverse reaction.  (UMF Nos. 4, 7.)  The treating nurse observed some erythema following Plaintiff’s treatment, which is normal following this type of procedure.  (UMF No. 5.)  Aloe was applied to Plaintiff, and she was given post care instructions for her treatment.  (UMF No. 5.)     

According to Defendants’ medical expert, Defendants met the standard of care based on the following facts: (1) Defendants adequately explained the risks, benefits and alternatives of treatment to Plaintiff, obtaining Plaintiff’s informed consent for elective treatment; (2) Plaintiff underwent a “good faith examination” to evaluate Plaintiff’s candidacy for treatment and was clinically assessed as a Fitzpatrick V, generally defined as sun insensitive skin, rarely burns, tans well; (3) Defendants properly asked Plaintiff about contra-indications for treatment including sun exposure, artificial tanning, or taking any photosensitive antibiotics which could cause increased skin sensitivity that would adversely affect the laser treatment; (4) Plaintiff’s medical history was carefully reviewed; Plaintiff denied using Accutane or Retinol products and any history of skin disorders; (5) the treating nurse conducted a test spot prior to treatment verifying no adverse reaction to the laser, and (6) the laser settings used during treatment were standard settings for Plaintiff’s skin type and identical to the settings used on Plaintiff’s face at her prior treatments, without any adverse reaction.  (UMF No. 7.)   

This hearing is on Defendants’ motion for summary judgment or in the alternative for summary adjudication.  Defendants proffer the declaration of their medical expert (Dr. Keith Marcus) who opines that, to a reasonable degree of medical probability, all the care and treatment provided by Defendants to Plaintiff was at all times compliant with the standard of care.  (UMF No. 8.)  Dr. Marcus also opines that to a reasonable degree of medical probability, no negligent action or omission by Defendants caused or contributed to Plaintiff’s injuries.  (UMF No. 9.)  The Court previously denied summary judgment, concluding Dr. Marcus’ declaration was wholly conclusory.  Defendants now submit a new, more detailed declaration from Dr. Marcus.   

REQUEST FOR JUDICIAL NOTICE  

Defendants ask the Court to take judicial notice of the complaint filed in this action.  It is¿unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to¿call the court’s attention to such papers.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)  Defendants’ request for judicial notice is denied.   

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 Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §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. Minor 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).   

As to each claim as framed by the complaint, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element of the claim(s) or by establishing an affirmative defense.  (Code Civ. Proc. §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 its 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.  (Id.)  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.) 

In a case involving a cause of action for medical malpractice, “[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 Plaintiff comes forward with conflicting expert evidence.”  (Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 985.) 

DISCUSSION 

Procedural Defect 

Defendants argue that because Plaintiff failed to file a response to the separate statement, the motion for summary judgment should be granted.  The Court agrees. 

The opposition paper must include a separate statement responding to each of the material facts the moving party contends to be undisputed, and identifying any other material facts the opposing party contends are disputed.  Each material fact must be followed by a reference to supporting evidence.  (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107,115, see also C.C.P. § 437(c)(b)(3).)  Courts have held that “[w]hen a moving party makes the required prima facie showing, failure to comply with this requirement may, in the court’s discretion, constitute a sufficient ground for granting the motion.” (Code Civ. Proc. § 437(c)(b)(3), see also Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568; Kojababian v. Genuine Home Loans Inc. (2009) 174 Cal.App.4th 408,418.)  

Here, Plaintiff includes no separate statement and therefore fails to dispute any material fact relied upon by Defendants in their summary judgment motion with evidence.  As such, Plaintiff’s opposition is procedurally flawed, and this Court may grant Defendants’ motion for summary judgment in its discretion based upon this omission alone.   

Medical Malpractice Claim 

Even assuming Plaintiff’s opposition were proper, Defendants argue based on their expert’s declaration, that they did not breach the standard of care, and therefore, Plaintiff’s claim for medical malpractice must fail.  The Court agrees. 

To establish a claim for medical malpractice, Plaintiff must prove (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.  (Latimore v. Dickey (2015) 239 Cal.App. 4th 959, 968.) 

The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.  (Id.)  The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts.  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)    

Defendants present the declaration of their expert, Dr. Marcus, to establish that their treatment of Plaintiff was within the standard of care.  Dr. Marcus opines based on his review of the medical records that Defendants “met the standard of care in Plaintiff’s diagnosis and treatment”.  (Marcus Decl. ¶ 12.)    

Dr. Marcus’ conclusions are based on the following facts: (1) Defendants adequately explained the risks, benefits and alternatives of treatment to Plaintiff; (2) Plaintiff underwent a thorough examination to evaluate Plaintiff’s candidacy for treatment and was clinically assessed as a Fitzpatrick V, generally defined as sun insensitive skin, rarely burns, tans well; (3) Defendants properly asked Plaintiff about contraindications for treatment which could cause increased skin insensitivity that would adversely affect the laser treatment; (4) Plaintiff’s medical history was reviewed; Plaintiff denied using Accutane or Retinol products and any history of skin disorders; (5) the treating nurse conducted a test spot prior to treatment verifying no adverse reaction to the laser, and (6) the laser settings used during treatment were standard settings for Plaintiff’s skin type and identical to the settings used on Plaintiff’s face at her prior treatments, without any adverse reaction.  (UMF No. 7.)   

Dr. Marcus’ new declaration is well-supported by facts and not conclusory.  Based on the declaration, the Court concludes there is no triable issue that Defendants met the standard of care.    

Relying on their expert’s declaration, Defendants also argue there is no triable issue that they caused the injury to Plaintiff.  Again, the Court agrees.   

In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.  (Alef v. Alta Bates Hosp. (1992) 5 Cal.App.4th 208, 216.)  A mere possibility alone is not sufficient.  (Morgenroth v. Pac. Med. Ctr. (1976) 54 Cal.App.3d 521, 533.)   

In Jones v. Ortho Pharmaceuticals Corp. (1985) 163 Cal.App.3d 396, the court elaborated on the difference between probability and possibility: “The distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion.  There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease.  A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.  This is the outer limit of inference upon which an issue may be submitted to the jury.”  (Id. at 403.) 

Here, Dr. Marcus’ expert declaration establishes that no act or omission on the part of Defendants proximately caused or contributed to Plaintiff’s claimed injuries.  (Marcus Decl. ¶13; UMF No. 9.)  Dr. Marcus opines that adverse reactions to laser treatment, as experienced by Plaintiff, are sometimes an unavoidable effect that can materialize even in the absence of any negligence from the medical provider.  (Id. ¶12.)       

Given Defendants have come forward with a properly supported expert declaration, the burden shifts to Plaintiff to provide a competing expert declaration.  (Munro v. Regents of University of California¿(1989) 215 Cal. App. 3d 977, 984-985 (“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.”)  Plaintiff has not provided any expert declaration. 

Instead, Plaintiff requests a continuance so that she could retain an expert and secure his or her declaration.  “A party who seeks a continuance under¿Code Civ. Proc., § 437c, subd. (h), must show why the discovery¿necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the trial court to grant the continuance.”  (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 156.)  Here, Plaintiff has not explained why she failed to retain an expert earlier, at the time she filed her complaint (on March 29, 2023), when Defendants filed their first motion for summary judgment (on March 13, 2024), and when Defendants filed this motion for summary judgment (on June 24, 2024).  Because Plaintiff has not demonstrated diligence in securing the evidence she now claims will defeat the motion for summary judgment, the Court denies the request for continuance.     

In sum, because there is no triable issue as to breach of duty and causation, the Court grants summary adjudication of Plaintiff’s medical malpractice claim. 

Negligent Infliction of Emotional Distress Claim   

Defendants argue that Plaintiff’s negligent infliction of emotional distress claim fails for three reasons: (1) there is no independent tort of negligent infliction of emotional distress; (2) Defendants were not negligent, and (3) Plaintiff has not presented any evidence she suffered serious emotional distress.  Given the Court’s ruling on the medical malpractice claim, the Court concludes there was no negligence and declines to consider the other arguments raised by Defendants. 

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendants Laserway Medical Group Inc. and Laserway, LLC’s motion for summary judgment or in the alternative, for summary adjudication.   

 

IT IS SO ORDERED. 

 

DATED: September 17, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court