Judge: Lynette Gridiron Winston, Case: 23PSCV01613, Date: 2025-03-10 Tentative Ruling

Case Number: 23PSCV01613    Hearing Date: March 10, 2025    Dept: 6

CASE NAME:  Kiarash Noorizadeh v. Dr. Maxwell Nazari 

Plaintiff’s Motion for Summary Judgment 

TENTATIVE RULING 

The Court summarily DENIES Plaintiff’s motion for summary judgment without prejudice. 

            Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a medical malpractice case. On May 26, 2023, plaintiff Kiarash Noorizadeh (Plaintiff) filed this action against Dr. Maxwell Nazari (Defendant), alleging causes of action for medical malpractice and personal injury. 

On February 7, 2025, Plaintiff moved for summary judgment. On February 18, 2025, Defendant opposed the motion. On February 24, 2025, Plaintiff replied. 

LEGAL STANDARD 

The purpose of a motion for summary judgment or summary adjudication “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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) 

“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 plaintiff moving for summary judgment or summary adjudication “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff ... has met that burden, the burden shifts to the defendant ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.” (Aguilar, supra, 25 Cal.4th at p. 850, citing Code Civ. Proc., § 437c, subd. (o)(1).)” 

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

EVIDENTIARY OBJECTIONS 

            The Court OVERRULES Plaintiff’s evidentiary objections to the Declaration of Mark Exler, as the Court does not rely on that evidence in reaching its decision here.

DISCUSSION 

            Trial courts lack jurisdiction to consider untimely summary judgment motions. (See Diaz v. Pro. Cmty. Mgmt., Inc. (2017) 16 Cal.App.5th 1190, 1204-1205 (Diaz); see also Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 765, quoting McMahon v. Superior Ct. (2003) 106 Cal.App.4th 112 [“in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings”].) Summary judgment motions require 81 days’ notice, plus additional time if served by a method other than personal service. (See Code Civ. Proc., § 437c, subd. (a)(2).) The hearing date for this motion is March 10, 2025. Plaintiff served this summary judgment motion on February 7, 2025, which is clearly less than the 81 days required under Code of Civil Procedure section 437c, subdivision (a)(2). (Motion, pp. 12-13.) Plaintiff’s motion is therefore untimely, and the Court lacks jurisdiction to consider it. (See Diaz, supra, 16 Cal.App.5th at pp. 1204-1205.) Therefore, the Court summarily DENIES Plaintiff’s motion for summary judgment without prejudice. 

            Even if the Court had jurisdiction to consider Plaintiff’s motion, it would still be procedurally defective. Plaintiff failed to provide a proper separate statement with the motion, which is by itself sufficient grounds for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1) [“The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion”]; Cal. Rules of Court, rule 3.1350, subds. (c)(2), (d); see also Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 876 [“Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement…”].) Plaintiff included a so-called “separate statement” within his moving papers and the statement does not comply with the requirements of rule 3.1350 of the California Rules of Court. The statement is not properly formatted. (CRC, rule 3.1350(d)(1)(A), (B), (h).)

            Even if the Court were to consider the merits of Plaintiff’s motion, it would still fail. Much of the authorities Plaintiff cited in the motion do not support Plaintiff’s contentions. The version of Business and Professions Code section 1682, subdivision (e)(1), in effect at the time Plaintiff filed this action stated it was unprofessional conduct for, “[a]ny dentist to fail to obtain the written informed consent of a patient prior to administering moderate sedation, deep sedation, or general anesthesia.” (Bus. & Prof. Code, § 1682, subd. (e)(1), eff. 1/1/22-12/31/24.) The current version of section 1682, subdivision (e)(1), reads the same. (Bus. & Prof. Code, § 1682, subd. (e)(1), eff. 1/1/25.) Either way, section 1682, subdivision (e), does not say that informed written consent is required before any dental procedure, as Plaintiff claims. Additionally, the cases of Thor v. Superior Court (1993) 5 Cal.4th 725, Truman v. Thomas (1980) 27 Cal.3d 285, Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129, and Arato v. Avedon (1993) 5 Cal.4th 1172, 1183, do not say anything about general consent forms.[1] 

The Court then notes that the portion of Defendant’s deposition transcript that Plaintiff cites regarding separate consent is ambiguous. (See Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 978 [evidentiary ambiguities are resolved at trial, not on summary judgment].) Plaintiff asked Defendant about whether there was a signed informed consent form for April 29, 2022, to which Defendant responded, “[f]or that specific date, there is no consent.” (Nazari Depo., 38:20-39:3.) Considering the deposition question asked about consent forms, Defendant’s response could easily be construed as indicating there was no consent form for the date in question, not that there was categorically no informed consent. (Dore v. Arnold Worldwide, Inc., supra, 39 Cal.4th at p. 389 [evidence on summary judgment construed in light most favorable to nonmoving party].) Additionally, given the aforementioned ambiguity in the deposition transcript itself, Defendant did not make a clear unequivocal admission, and Defendant’s citation to D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 is therefore unavailing. Thus, Defendant’s deposition statement does not demonstrate the absence of a triable issue of material fact on this issue. 

            Based on the foregoing, the Court summarily DENIES Plaintiff’s motion for summary judgment without prejudice. 

CONCLUSION 

The Court summarily DENIES Plaintiff’s motion for summary judgment without prejudice. 

            Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.