Judge: Elaine W. Mandel, Case: 23SMCV02303, Date: 2025-05-14 Tentative Ruling

Case Number: 23SMCV02303    Hearing Date: May 14, 2025    Dept: P

Tentative Ruling

Graziani v. Zaghi, Case no. 23SMCV02303

Hearing date May 14, 2025

Defendant Zaghi’s Motion for Summary Judgment

Plaintiff Graziani sues defendants Zaghi, M.D. and The Breathe Institute, LLC for medical malpractice arising out of an “overly aggressive” septoplasty and turbinate reduction, resulting in damage to plaintiff’s nose. The Breathe Institute was dismissed 2/6/24. Defendant Zaghi moves for summary judgment.

Plaintiff’s objections to defendant’s separate statement. Objections 1-2 OVERRULED.

Defendant’s evidentiary objections to the declaration of Dr. Furze. Objections 1-4 OVERRULED.

Defendant Zaghi argues plaintiff’s opposition is untimely and should be disregarded. The opposition was due 4/22/25 but filed 4/24/25. Plaintiff asserts the delay resulted from a calendaring error. Decl. Minna paras. 2-4. Defendant had 7 court days plus a weekend to reply. Any prejudice as a result of the two-day delay was minimal, and defendant did not request a continuance.

Pursuant to Cal. Code Civ. Proc. §437c(a)(1) a party may move for summary judgment if it is contended the action has no merit. Pursuant to §437c(f)(1) a court may summarily adjudicate causes of action. A motion for summary judgment shall be granted if there is no triable issue of material fact, and the record establishes as a matter of law, plaintiff cannot prevail on a cause of action. Cal. Code Civ. Proc. §437c(c). A defendant meets the burden of showing a cause of action has no merit if it shows one or more elements of the cause of action cannot be established. Once defendant meets its burden, the burden shifts to plaintiff to show a triable issue of material fact. Cal. Code Civ. Proc. §437c(p)(2).

The elements of a cause of action for professional negligence against a healthcare provider are (1) legal duty to use due care, (2) breach, and (3) causation. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992.

Defendant argues plaintiff cannot establish breach or causation. Defense expert Dr. Bredenkamp opines defendant Zaghi complied with the applicable standard of care (Decl. Bredenkamp paras. 8-9; SSMF 5-6) and no acts or omissions by Zaghi caused plaintiff’s injuries (Decl. Bredenkamp paras. 10-11; SSMF 7-8).

Plaintiff’s expert Dr. Furze opines plaintiff’s injuries are the kind that “can result from overly aggressive nasal surgery.” Decl. Furze para. 17. Dr. Furze opines the surgery fell below the standard of care, and the failures “were a substantial factor” in causing plaintiff’s injuries. Decl. Furze paras. 20-21. Plaintiff provided contrary expert testimony, demonstrating a triable issue of fact as to breach and causation.

Defendant argues Furze’s declaration is unsupported and fails to provide an evidentiary basis, rendering it worthless per Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742. This argument is not well taken; Furze relies on his experience, plaintiff’s medical records and Bredenkamp’s declaration. See Decl. Furze paras. 4, 14. A declaration in opposition to a summary judgment motion must "be made and affirmatively shown to be on personal knowledge and based on admissible evidence." Craig Corp. v. County of Los Angeles (1975) 51 Cal.App.3d 909, 915.

Plaintiff need not supply copies of medical records in opposition to this motion; Furze’s declaration under penalty of perjury that he reviewed and relied upon such records is sufficient. Further, defense counsel admits portions of plaintiff’s medical records were produced by Furze during discovery, demonstrating Furze’s access to them. See Decl. James para. 9.

Defendant argues Furze’s opinion is overly conclusory and unsupported. These arguments go to the weight of the evidence and opinion, not its admissibility, and are not dispositive on a motion for summary judgment. Furze sets out his familiarity with injuries like plaintiff’s, the potential causes thereof, and opines that defendant’s treatment fell below the standard of care. See Decl. Furze paras. 17-23. Plaintiff provided an admissible, reasoned expert opinion disputing defendant's expert opinion to the contrary. As there is a question of material fact raised by contradictory expert declarations, the motion must be DENIED.