Judge: James A. Mangione, Case: 37-2021-00038684-CU-MM-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Medical Malpractice Summary Judgment / Summary Adjudication (Civil) 37-2021-00038684-CU-MM-CTL ATTALLAH VS ALLIED HEALTH CLINIC INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Allied Health Clinic Inc.'s Motion for Summary Judgment is denied.

A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff's cause of action cannot be established. (Code Civ. Proc., § 437c(o)(2).) The defendant bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact.

(Id.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Fn. omitted.]' (Id.) Summary adjudication may be granted on the same grounds, so long as it 'completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' (CCP § 437c(f)(1).) In medical malpractice cases, a defendant is entitled to summary judgment when the motion is supported by expert declarations and the plaintiff does not provide conflicting expert evidence. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.) Here, Plaintiff's expert, Dr.

Vicki Petropoulos, is a Doctor of Dental Medicine familiar with the standard of care for dental practitioners in the community. Dr. Petropoulos's declaration stated that she reviewed Plaintiff's complete dental records, Defendant's expert declaration and relevant discovery. She opines that Dr.

Malone's treatment fell below the standard of care in several respects, including failing to place a matrix band and contouring the temporary filling for tooth #30, failing to identify other potential causes for Plaintiff's tooth pain and failing to notice the broken file used in performing the root canal and/or referring Plaintiff to a specialist upon being unable to get to the apex. (ROA 107, ¶¶ 8(f), 8(j), 8(n), 9(h), 9(k), 9(m)-(p).) The declaration concludes with the statement: 'Based on my education, background, training, and experience, as well as my review of records as set forth above, it is my expert medical/dental opinion that to a reasonable degree of medical probability, the Plaintiff's claimed injuries, including but not limited to pain and suffering, and need for retreatment or extraction of tooth #29 were a result of negligence and a breach of the standard of care on the Defendant's part.' (Id., ¶ 10.) This is sufficient to establish that material factual disputes exist, and summary judgment should be denied.

Based on Plaintiff's representation in his opposing brief, ROA 105, the Court orders dismissal of Plaintiff's Second Cause of Action for Medical Battery.

Defendant's evidentiary objections to the Declaration of Vicki Petropoulos are sustained as to objection Calendar No.: Event ID:  TENTATIVE RULINGS

3033046  20 CASE NUMBER: CASE TITLE:  ATTALLAH VS ALLIED HEALTH CLINIC INC [IMAGED]  37-2021-00038684-CU-MM-CTL number 1 and overruled as to objection numbers 2-4.

Plaintiff's request for sanctions is denied.

The minute order is the order of the Court.

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3033046  20