Judge: Loren G. Freestone, Case: 37-2022-00046883-CL-PN-CTL, Date: 2024-04-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Limited  Professional Negligence Summary Judgment / Summary Adjudication (Civil) 37-2022-00046883-CL-PN-CTL CARUSO VS MOFID [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Mehrdad Mark Mofid and M. Mark Mofid, M.D. APC (collectively, Mofid)'s motion for summary judgment as to the first amended complaint filed by Plaintiff Jonathan Caruso is DENIED.

'If the defendant does not address an issue in a motion for summary judgment that has been raised in the plaintiff's complaint, it fails to meet its initial burden to show the plaintiff's action has no merit; the motion therefore fails to shift the burden to the plaintiff to oppose summary judgment.' (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846; see, e.g., Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165.) 'Thus a plaintiff who has pleaded a cause of action on either of two theories will not be subject to defeat by summary judgment because the defendant has established by an uncontradicted affidavit that one of the two theories (but not necessarily the other) cannot be established. The burden is upon defendant to rule out all possible merit.' (Cox v. State of California (1970) 3 Cal.App.3d 301, 310.) Finally, 'a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.' (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545–1546.) Here, Mofid only moved for summary judgment. There was no alternative motion for summary adjudication. As such, the motion must be denied if there is a single triable issue of material fact as to any cause of action.

The third cause of action is for negligent misrepresentation. Caruso alleges that Mofid 'committed negligent misrepresentation two ways. First, the defendant told the plaintiff the forms regarding smoking didn't apply to him. . . . Second the defendant committed negligent misrepresentation when he told the patient he could make the dent in his nose completely disappear.' Mofid's motion only addresses the second theory of liability of the third cause of action. Mofid never discusses or presents any evidence regarding the first theory of liability of the third cause of action. As such, the burden never shifted to Caruso to oppose the motion.

As Mofid failed to negate all theories of liability pled in the complaint, the motion for summary judgment is denied.

Calendar No.: Event ID:  TENTATIVE RULINGS

3068326  55 CASE NUMBER: CASE TITLE:  CARUSO VS MOFID [IMAGED]  37-2022-00046883-CL-PN-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

3068326  55