Judge: Lisa R. Jaskol, Case: 20STCV36884, Date: 2023-09-12 Tentative Ruling

Case Number: 20STCV36884    Hearing Date: September 12, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On September 28, 2020, Plaintiff Adam Sinasky (“Plaintiff”) filed this action against Defendants Millennium Dental Technologies, Inc. (“Millenium”), Institute for Advanced Laser Dentistry (“Institute”), Robert H. Gregg II, D.D.S. (“Gregg”), Neal Lehrman, D.D.S. (“Lehrman”), Ray Ma, D.D.S. (“Ma”), Christopher Sun, D.D.S. (“Sun”), Sanju Patel, D.D.S. (“Patel”), Sharon Malony, D.D.S. (“Malony”), John Megas, Jr., D.D.S. (“Megas”), Jennifer Baylend, D.D.S. (“Baylend”), and Does 1-99 for Professional Negligence--Dental Malpractice. 

On April 5, 2022, Institute filed an answer. 

On June 17, 2022, Millennium, Gregg, Lehrman, Ma, Sun, Patel, Malony, Megas and Baylend filed an answer. 

On May 26, 2023, Millennium filed a motion for summary judgment to be heard on August 17, 2023. The Court continued the hearing on the motion to September 12, 2023.  On September 8, 2023, Millennium filed a notice of non-opposition. 

Trial is scheduled for March 20, 2024. 

PARTY’S REQUEST 

Millennium requests that the Court grant summary judgment. 

REQUEST FOR JUDICIAL NOTICE 

          The Court grants Millennium’s request for judicial notice of Plaintiff’s complaint.  (Evid. Code, §§ 452, subd. (d), 453.) 

LEGAL STANDARD  

A.   Summary judgment

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)   

In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view the evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

          B.  Negligence 

          “The elements of a negligence claim [are] . . . a legal duty of care, breach of that duty, and proximate cause resulting in injury.”  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

The elements of a cause of action for medical negligence are: (1) duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of duty; (3) proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.  (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702.) 

The standard of care for a medical professional is a matter within the exclusive knowledge of experts.  (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)  A plaintiff must prove causation by a reasonable medical probability based on competent expert testimony.  (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504.) 

DISCUSSION 

A.   Undisputed facts 

Millennium is the developer and manufacturer of a FDA-approved laser device known as PerioLase MVP-7 and a FDA-approved protocol for the treatment of periodontal (i.e., gum) disease known as “Laser Assisted New Attachment Procedure (LANAP).”  (UMF 6.) 

The PerioLase MVP-7 laser is part of the LANAP protocol and is used to perform all LANAP procedures.  Millennium is not a health care provider, physician, or dentist, and it does not diagnose, treat, or perform dental procedures on individuals.  Millennium has never diagnosed, treated, or performed any dental services on Plaintiff, and it did not perform, or assist in any way with, the LANAP procedures conducted on Plaintiff on February 8 or 22, 2019.  (UMF 7-9.)  

On September 28, 2020, Plaintiff filed a complaint which asserts a single cause of action for “Professional Negligence—Dental Malpractice” against Defendants including Millennium.   

The complaint alleges the following: 

On or about February 8 and 22, 2019, Plaintiff employed Defendants, including Millennium, to examine, diagnose and perform LANAP therapy on him to treat his periodontitis.  In April 2019, it was discovered that, in performing LANAP therapy on him, Defendants had burned a hole in Plaintiff’s palate that exposed the underlying bone, subjecting Plaintiff to infection. Defendants, including Millennium, negligently failed to possess and exercise, in both diagnosis and treatment, the knowledge and skill that is ordinarily possessed and exercised by other physicians and surgeons in the same or similar circumstances, and negligently performed the LANAP procedure on Plaintiff.  Defendants failed to meet the higher standard of care imposed on dentists with a specialized practice.  Defendants provided negligent medical care by providing laser assisted new protocol therapy to Plaintiff, burning a hole in Plaintiff’s palate and exposing the underlying bone. This resulted in a blood infection that progressed and turned into endocarditis.  (UMF 1-5.) 

Plaintiff alleges no other cause of action against Defendants. 

B.   Millennium has carried its initial burden on summary judgment 

It is undisputed that Millennium – the developer and manufacturer of the laser device and protocol used during Plaintiff’s LANAP procedure – did not perform the LANAP procedure and never diagnosed or treated Plaintiff. Because Millennium is not a health care provider or treating dentist, and because it did not render any professional services to Plaintiff, Millennium did not, as a matter of law, owe Plaintiff a duty of care or violate the standard of care that applies to a medical professional.  Therefore, Millennium has carried its initial burden on summary judgment of proving it did not owe or breach a duty of care to Plaintiff. 

C.   Plaintiff has not raised a triable issue of fact 

Plaintiff has not filed an opposition to Millennium’s motion for summary judgment or objected to any of Millennium’s evidence.  (See L. Edmon and C. Karnow, Cal. Practice Guide: Civil Proceedings Before Trial (Rutter 2023) ¶ 10:210, p. 10-98 [“Failure to object waives the right to challenge the court’s ruling based on [the moving party’s] evidence”].)  Plaintiff has not carried his burden of raising a triable issue of fact. 

The Court grants the motion. 

CONCLUSION 

The Court GRANTS Defendant Millennium Dental Technologies, Inc.’s motion for summary judgment. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days of the hearing.