Judge: Malcolm Mackey, Case: 21STCV15670, Date: 2022-12-13 Tentative Ruling
Case Number: 21STCV15670 Hearing Date: December 13, 2022 Dept: 55
ALEXANDER
GHATAN v. SHIRAZY 21STCV15670
Hearing Date: 12/13/22,
Dept. 55 (cont’d from 12/8/22)
#9: MOTION FOR SUMMARY ADJUDICATION.
Notice: Okay
Opposition
MP:
Plaintiff ALEXANDER GHATAN.
RP:
Defendants
Summary
On 4/26/21, plaintiffs filed a Complaint alleging: On 7/3/20,
Plaintiff Doctor ALEXANDER GHATAN, and
corporations owned by Defendant Doctor Shirazy, entered into a written
Professional Services Agreement (“PSA”) for Plaintiff to provide medical
services to defendants’ patients, but defendants conversely contend that
Plaintiff is entitled to the professional fee liens for just 11 of
approximately 270 procedures, and that defendants have not had any duty to
exclusively use Plaintiff for some of the listed exclusive procedures. Additionally, defendants used Plaintiff’s
likeness on marketing material without Plaintiff’s consent.
MP
Positions
Moving party requests an order summarily adjudicating
issues of contract duties, and likeness misappropriation, as follows:
1. Defendants had a
contractual duty to exclusively use Plaintiff Dr. Alexander Ghatan for certain
procedures (the “exclusive procedures list”).
2. Defendants had a
contractual duty to give Plaintiff Dr. Alexander Ghatan full ownership and
rights to the liens for professional fees for all procedures Dr. Ghatan
performed on personal injury patients.
3. Plaintiff is entitled
to summary adjudication of the fourth cause of action for violation of
California Civil Code § 3344 because Plaintiff has established all elements
thereof and there are no valid affirmative defenses.
The motion is made on grounds including the following:
·
The parties entered into an enforceable
written contract providing that Defendants had a duty to exclusively use Dr.
Ghatan for certain medical procedures and that Defendants had a duty to give
Dr. Ghatan full ownership and rights to liens for professional fees for
personal injury patients.
·
In order to be excused of a duty set forth
in a contract, Defendant must prove fraudulent inducement. Plaintiff’s
revisions to the contract were very noticeably in red and underlined. Defendant
read Plaintiff’s revisions to the PSA and made his own further changes to the
same paragraph that had the revisions at issue. Defendant’s own further
revisions were incorporated into the final version.
·
Defendants misappropriated Plaintiff’s
name and likeness, without Plaintiff’s consent. Defendant’s only defense
to this is that he “did not know” he needed Plaintiff’s permission – an
argument with no legal basis.
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Plaintiff at the last minute inserted
major changes in the contract, whereby the employer/corporation paid Plaintiff
a salary and Plaintiff got to keep all the profits from his services.
·
Dr. Ghatan’s representation in his email,
that all substances changes were those discussed with Dr. Shirazy, was a lie
intended to induce Dr. Shirazy to review the attached, edited PSA, without more
carefully reading the Procedures Exclusivity provision, inasmuch as the topic
had never been discussed between the parties.
·
Dr. Ghatan, by changing the letter case of
the letter P from upper case to lower case, guaranteed himself additional
income – the full fee – on every patient he serviced while working for OPM
two-and-one-half days per work week.
·
With respect to the PSA, it is clear that
the intent was to bind the corporation, without any duty placed on Dr. Shirazy.
·
Plaintiff’s argued arrangement for
payments would be unlawful. Business and
Professions Code section 650 makes it unlawful for one licensed in the healing
arts to receive any kickback as compensation or inducement for the referral of
patients.
·
Defendants did not misappropriate
Plaintiff’s likeness. Plaintiff
knowingly texted his information to the Human Resources Director for use in
defendants’ marketing flyer being updated.) At no time did the H.R. Director
communicate to Dr. Ghatan that the distribution or use of the promotional flyer
would be limited to the upcoming Dinner Seminar event. (SSUF 25). Plaintiff never requested that this marketing
flyer be used solely for the purpose of the upcoming Dinner Seminar Event to
any OPM personnel (SSUF 25).
Tentative
Ruling
The motion is denied, as to all issues.
As to issues 1 and 2, about contract duties, there are
triable issues, including whether Plaintiff sent email inaccurately minimalizing
drastic contract modifications, thereby causing Defendant’s reasonable reliance
on the email instead of reading the changed, highlighted contract provisions (e.g., Plaintiff’s decl., verses Defendant
PEJMAN SHIRAZI, M.D. decl., ¶¶ 7 - 12).
Reasonable reliance on the other contracting party’s
misrepresentations, resulting in the failure to read a full agreement before
signing, can be fraud in the execution, permitting avoidance of unread contract
provisions. E.g., Metters v. Ralphs Grocery Co. (2008)
161 Cal.App.4th 696, 702.
With regard to issue 3, concerning likeness misappropriation,
there are triable issues, such as whether Plaintiff indicated consent to use of
his information in marketing material describing the physicians working for the
corporation (e.g., Christine Barretto decl.,
¶¶ 6 - 9).
Moreover, issue 3 is procedurally disallowed, because,
as worded and proved, it leaves unresolved the issue of damages for the claim.
A plaintiff cannot obtain summary adjudication as to
liability, while leaving the amount of damages to be determined later. Paramount Petroleum Corp. v. Sup. Ct.
(2014) 227 Cal.App.4th 226, 241. See
also CCP §437c(s)(1). Misappropriation claims involve damages. E.g., Kirby
v. Sega of America, Inc. (2006) 144 Cal. App. 4th 47, 55; Montana v. San
Jose Mercury News (1995) 34 Cal. App. 4th 790, 793; Civ. C. §3344.
Finally, the Court overrules opposing evidentiary
objections to paragraphs 7 and 11 of Plaintiff’s declaration, and sustained as
to paragraph 10.