Judge Lynne M. Hobbs, Case Number: 19STCV05094, Date: 2023-09-26 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.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

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.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

The essential elements of a cause of action for negligence of a healthcare provider are the defendant’s legal duty to use due care, a breach of that duty, and that the breach was a proximate or legal cause of the resulting injury. (See Flowers v. Torrance Memorial Hospital Medical Center, (1994) 8 Cal.4th 992.) Furthermore, the Court has held, “Absent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued.” (Armato v. Baden (1999) 71 Cal.App.4th 885, 895.) Similarly, “[t]he law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1336.) And in a case such as this one which is based upon a healthcare provider’s professional negligence, “medical causation can only be determined by expert medical testimony.” (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.) Further, an expert witness’ own declaration is sufficient to show the absence of triable issues for purposes of summary judgment, and the motion shall not be denied on the grounds of credibility if the party is otherwise entitled to summary judgment. (See Lerner v. Superior Court, (1970) 70 Cal. App. 3d 656, 660.) Finally, in the context of medical malpractice, when a defendant supports its motion for summary judgment with competent expert testimony that there was no breach of the standard of care, or that the doctor did not cause the plaintiff harm, the plaintiff bears the burden of coming forward with conflicting expert testimony to defeat summary judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984; Willard, 121 Cal.App.3d at 413.)

Here, Defendant Chalian sold his dental practice on November 14, 2016. During that time, Defendant provided Plaintiff with general and restorative treatment. Dr. Chalian’s expert prosthodontist, Edmond Hewlett, D.D.S., opined to a reasonable degree of medical probability that all of the general dentistry and restorative dental treatment that the plaintiff received from Dr. Chalian met the standard of care for dentists in the dental community and did not cause the plaintiff to suffer any injury. (SSUMF No. 4, 14). Further, Defendant’s expert endodontist, Barry Vilkin, D.M.D., M. Sc.D., opined that the root canal treatment rendered to Plaintiff on June 8, 2017, was indicated and appropriate given the plaintiff’s x-rays and clinical condition. Dr. Vilkin opined that the radiograph showed that there was extensive decay into the nerve space which is a clinical situation whereby acute pain can begin and the tooth can deteriorate with any delay in seeking treatment. (SSUMF No. 9). Dr. Vilkin opined that the root canal dental treatment provided to Plaintiff on June 8, 2017, did not breach a duty of care owed to Plaintiff and did not cause Plaintiff’s injury. (SSUMF No. 9, 12, 15). Furthermore, Dr. Vilkin opined that Dr. Yazichian was fully qualified to perform the root canal treatment on June 8, 2017, and a CBCT scan was not required by the standard of care to be taken prior to the root canal treatment. (SSUMF No. 10, 11).

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101. A breach of fiduciary duty is a tort claim entirely distinct from a malpractice claim based on professional negligence. (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382-383; cf. Budd v. Nixen (1971) 6 Cal.3d 195, 200 (elements of cause of action for professional negligence).) Beyond mere allegations of professional negligence, a cause of action for breach of fiduciary duty requires some further violation of the obligation of trust, confidence, and/or loyalty to the client. (See 2 Mallen & Smith, Legal Malpractice (2017) § 15.3, pp. 660-661 (“[F]iduciary breach allegations that constitute negligence, which do not implicate a duty of confidentiality or loyalty, and are merely duplicative of a negligence cause of action, do not support a cause of action for fiduciary breach.”))

Here, Defendant alleges that Plaintiff fails to allege any action by Dr. Chalian that constitutes some “further violation of [his] trust, confidence, and/or loyalty,” and instead merely reiterates his allegations of professional negligence. Specifically, Plaintiff claimed the Defendants breached their respective duties of care by “failing to exercise the requisite level of care and competence” required in the dental community, an allegation sounding in negligence that is therefore insufficient to maintain a cause of action for Breach of Fiduciary Duty. (Plaintiff’s TAC, Second Cause of Action, paragraph 3.) As discussed above, Dr. Hewlett, establishes that all of the restorative treatment that Defendant performed on the Plaintiff was appropriate, met the standard of care, and did not cause the plaintiff to suffer injury. Further, the expert endodontist establishes that the root canal treatment that was performed by Dr. Yazichian on June 8, 2017, was indicated and appropriate and did not cause the plaintiff to suffer any injury.

Plaintiff alleges that on June 8, 2017 Dr. Chalian misrepresented to him that he needed an emergency root canal and that plaintiff should use Dr. Yazichian for such treatment. Plaintiff further alleges that this misrepresentation caused him to suffer injury. As already discussed above, the evidence shows that given the clinical presentation, it was appropriate to recommend an immediate root canal. The expert declarations also establish that as a licensed dentist, Dr. Yazichian, was capable and able to perform the root canal. Plaintiff also alleges that he suffered some type of harm due to Dr. Chalian’s alleged concealment of his own medical condition and sale of the dental practice. Dr. Chalian sets forth that even after he sold his practice, he continued to practice at the Encino office on a limited basis until June 2017. No evidence demonstrates that Plaintiff suffered an injury as a result of the sale of the practice to Dr. Yazichian. Further, Dr. Chalian's own medical issues did not contribute to any alleged injury. Dr. Chalian began experiencing some neck and back pain that ultimately caused him to stop treating patients after he treated Plaintiff. Plaintiff's deposition corroborates that Dr. Chalian did not appear to suffer from any medical condition that interfered with the dental care. Therefore, Defendant has met his burden by providing evidence that Plaintiff has not established a triable issue under this cause of action.