Judge Jill Feeney, Case 19STCV05094 2023-02-16 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

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If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

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On February 14, 2019, Plaintiff Charly J. Netel filed his complaint alleging causes of action for negligence, breach of fiduciary duty, and fraud and intentional misrepresentation against defendants Raffi G. Chalian, Eliza Yazichian and E Yazichian Dental Corp (erroneously sued as Smile Encino Dental). This action arises out of a series of dental procedures which Plaintiff alleges Defendants negligently performed, resulting in the need for corrective procedures, pain and suffering, emotional distress, and loss of earnings.

Defendants Eliza Yazichian and E Yazichian Dental Corp move for summary adjudication of Plaintiff’s third cause of action for fraud and intentional misrepresentation on the grounds that Moving Defendants did not commit fraud or intentionally misrepresent anything to Plaintiff. Moving Defendants argue that Defendant Yazichian exercised her clinical judgment to recommend and perform the root canal at issue. Yazichian alleges she did not make any misrepresentation, had no knowledge of the falsity of her representations, and had no intent to defraud.

Plaintiff argues in opposition that triable issues of material fact exist as to whether Yazichian intentionally failed to disclose that an immediate root canal procedure was not warranted. Additionally, Yazichian failed to disclose Chalian’s neurological impairment and that he was no longer Plaintiff’s dentist.

Moving Defendants argue that Plaintiff’s root canal treatment was medically indicated and it was within the standard of care to recommend an immediate root canal. Moving Defendants also argue that a lack of informed consent is not at issue in this motion. Plaintiff has no evidence that Yazichian had any intent to conceal or suppress any fact from him.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).)

Moving Defendants move for summary adjudication as to Plaintiff’s third cause of action for fraud and intentional misrepresentation. Plaintiff’s Third Amended Complaint states that Chalian recommended an emergency root canal and informed him that Yazichian could complete the procedure that day. Plaintiff alleges that Defendants concealed Yazichian’s lack of qualifications and informed him that the root canal needed to be completed immediately. Plaintiff alleges he relied on Chalian’s years of past treatment and recommendations, and agreed to the root canal. (TAC, p. 6-10.)

The elements of fraud are: “(a) misrepresentation of a fact (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

The elements of fraud based on concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively concealed a material fact from the plaintiff; and (4) the defendant made partial representations but also suppressed some material facts. (Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

Here, Moving Defendants’ evidence shows that on June 8, 2017, Plaintiff presented to Smile Encino Dental with an existing crown on tooth #2. (UMF No.1.) During his visit, an x-ray of his tooth #2 revealed decay that extended to the pulp chamber. (UMF No. 5.) Yazichian performed a clinical examination of the tooth and removed his then-existing crown and discovered decay on the tooth. (UMF No. 6.) After removing the decay, another x-ray was taken, showing loss of tooth structure from the decay extending to the pulp chamber. (UMF No. 7.) Yazichian then performed root canal treatment to Plaintiff’s tooth #2. (UMF No. 8.)

Defendant Yazichian’s declaration states that on the date of the root canal, she performed a clinical examination of the tooth, removed the crown, and saw that there was decay in the tooth necessitating root canal treatment. (Yazichian Decl., ¶8.) Using her clinical judgment, Yazichian determined that Plaintiff needed root canal treatment. (Id., ¶9.) After Plaintiff refused to sign consent documentation, Yazichian explained the risks, benefits, and alternatives to the procedure. (Id.) Plaintiff then consented to the procedure and Yazichian completed the root canal. (Id.) During the root canal, Yazichian observed more decay in the tooth, further indicating the root canal was necessary. (Id.)

Yazichian also testifies that she purchased Smile Encino Dental, Inc. from Dr. Raffi Chalian, who continued to work at the office until around July 2017. (Id., ¶11.) Yazichian testifies that she did not conceal the purchase from any patient, including Plaintiff, and that she had been working at the practice for nine years before purchasing it. (Id., ¶12.)

Yazichian further testified at deposition that Chalian was the person who initially told Plaintiff that Plaintiff needed a root canal. (Yazichian Depo., 43:9-11.) Yazichian then confirmed the root canal was necessary by examining Plaintiff’s x-ray and informed Plaintiff that the procedure was necessary because the decay went all the way to the canal. (Id., 43:13-44:3.) Chalian had informed Yazichian that Plaintiff was possibly in pain. (Id., 44:4-16.) Even without pain, Yazichian believed the root canal was still necessary that day. (Id., 82:6-10.)

Yazichian also testified at deposition that she took over the dental practice from Chalian in December 2016. (Yazichian Decl., 21:3-7.) Chalian continued to work on patients until October 2017. (Id., 22:2-10.) The dental practice was not divided and all dentists worked on patients depending on the day. (Id., 30:9-17.) Yazichian continued to use Dr. Chalian’s name and billing number for six months after purchasing the practice because it takes time for the government to issue a new National Provider Identifier (“NPI”). (Id., 86:4-87:25.) Chalian told Yazichian that he had a second practice and was selling Smile Encino because it was difficult for him to manage both. (Id., 104:17-25.) Chalian issued notices that the practice had been sold. (Id., 30:18-31:1.)

Moving Defendants also include the declaration of Michael McMahon, an expert witness, who testifies that Plaintiff’s tooth #2 required root canal treatment because the decay extended to the pulp chamber or nerve of the tooth. (McMahon Decl., ¶8.) Yazichian’s decision to perform the procedure was appropriate and complied with the standard of care. (Id.) Failure to perform an immediate root canal treatment would have resulted in Plaintiff experiencing pain from toxins produced by bacteria in the decay in the tooth’s pulp chamber. (Id.) Yazichian is qualified to perform root canal treatments because she is a licensed doctor of dental surgery. (Id., ¶9.)

Moving Defendants’ evidence shows that Yazichian did not misrepresent her qualifications as a dentist, nor did she misrepresent that an immediate root canal was necessary. Moving Defendants’ expert, McMahon, testified that Yazichian is a licensed doctor of dental surgery qualified to perform root canal treatments. McMahon also testifies that he agrees the root canal was necessary and that Yazichian’s recommendation was well within the standard of care. Yazichian’s testimony in her declaration and at deposition reveals that after Chalian provided an initial examination, Yazichian examined Plaintiff’s x-rays, affirmed to Plaintiff that he needed a root canal, explained the procedure and its risks, and then completed the procedure. The evidence shows that Yazichian is qualified to perform root canals and that her recommendations were within the standard of care. Therefore, Moving Defendants meet their burden of showing that no triable issues of material fact remain over whether they made a misrepresentation with respect to the root canal and Yazichian’s qualifications.

The burden shifts to Plaintiff. Plaintiff relies entirely on the declaration of Plaintiff to show that Yazichian misrepresented that an immediate root canal was necessary. Although Plaintiff references his deposition testimony in Exhibit D of his opposition papers, there was no Exhibit D submitted.

Plaintiff testifies that he was never offered a consent form, informed Yazichian that he was not in any pain, and that she did not disclose her qualifications. (Netel Decl., ¶¶15-16.) Plaintiff also alleges that she did not explain the risks, benefits, or alternatives to the root canal. (Id., ¶15.)

Plaintiff’s evidence does not show a genuine issue of fact as to whether Yazichian misrepresented that the immediate root canal was necessary. Plaintiff does not offer conflicting expert testimony stating the immediate root canal was not necessary. Plaintiff also fails to provide any conflicting evidence with respect to Yazichian’s qualifications to perform a root canal. Plaintiff’s own speculation that he did not need an immediate root canal or that Yazichian lacked the qualifications to perform the procedure is improper lay opinion under Evidence Code, Section 800. Plaintiff fails to provide evidence demonstrating the existence of a triable issue of material fact regarding Yazichian misrepresenting the necessity of an immediate root canal or lacking the qualifications to perform a root canal.

Moving Defendants also argue that Yazichian had no duty to disclose the purchase of the dental practice, she did not intend to defraud Plaintiff, and did not intentionally conceal this information. Moving Defendants’ evidence shows that Chalian issued notices that she would be joining the practice as a senior partner. Additionally, she had been working at the dental practice for more than 9 years at the time of the incident. The dental practice does not assign patients to a specific dentist. Although Chalian was the dentist who initially performed an examination of Plaintiff, Yazichian completed the examination, recommended the root canal, and performed the procedure.

Because it is unrelated to Plaintiff’s care, who owns the dental practice is not a material fact. There is no evidence that Plaintiff concealed the sale and used Chalian’s name to defraud Plaintiff. Additionally, there is no evidence showing that Yazichian misrepresented ownership of the practice in order to defraud Plaintiff. Moving Defendants thus meet their burden of showing that there are no material issues of fact over whether Yazichian misrepresented the ownership of the dental practice, that the dental practice ownership was material, or that she intended to defraud Plaintiff.

With respect to duty, there is no legal duty and Plaintiff fails to cite any legal authority showing a legal duty to disclose a change in ownership of a medical practice. With respect to intent to defraud, there is no evidence that Yazichian knew that Plaintiff would not agree to the procedure if he knew Yazichian owned the practice or misrepresented her ownership to induce him to agree to the procedure. Plaintiff does not articulate what misrepresentation he relied on when he agreed to the procedure. There is no evidence that anyone discussed ownership of the practice on the day of the procedure.

The burden shifts to Plaintiff. Plaintiff’s declaration states that he would never have remained a patient of that dental practice if he knew Dr. Yazichian would become his new dentist. (Netel Decl., ¶22.) Additionally, Plaintiff testifies that he would complete discovery to show that Yazichian has a pattern of performing unnecessary dental services to increase her fees. (Id., ¶20.)

Plaintiff’s declaration alone is insufficient to show that a triable issue of material fact remains over whether Yazichian misrepresented the practice’s ownership, whether she had a duty to disclose that fact, an whether she intentionally concealed that information. Again, the ownership of the practice is not material to Plaintiff’s injuries because it is unrelated to Plaintiff’s treatment. Additionally, Moving Defendants’ evidence shows that it was not the dental practice’s custom to assign a patient to any particular dentist. There is no evidence that Plaintiff objected to Yazichian’s stepping in for Chalian. There is also no evidence that Yazichian actively concealed that she owned the practice.

Plaintiff argues that Yazichian concealed the ownership change because she continued to use Chalian’s name and billing information for a year after the sale. Yazichian’s deposition testimony shows that she continued to use Chalian’s name in billing because she was waiting for the issuance of a new NPI. Plaintiff’s evidence is insufficient to show that Yazichian actively concealed the ownership change by continuing to use Chalian’s billing information. Moreover, all this evidence relates to actions taken after the procedure about which Plaintiff complains.

Finally, Plaintiff alleges that Moving Defendants concealed Chalian’s alleged neurological problems. Moving Defendants’ evidence shows that Yazichian believed Chalian sold his practice to her because he was having difficulty managing two practices. The only evidence that Chalian had neurological problems is Plaintiff’s deposition testimony, in which he states that an assistant confided that Chalian was experiencing neurological problems and could not treat him. (Netel Decl., 104:25-106:4.) This is hearsay. Moreover, in any case, Chalian did not perform the root canal at issue. Thus, this fact is not material.