Judge: Mark A. Young, Case: 23SMCV02963, Date: 2025-03-20 Tentative Ruling
Case Number: 23SMCV02963 Hearing Date: March 20, 2025 Dept: M
CASE NO.: 23SMCV02963
MOTION: Motion
for Summary Judgment/Adjudication
HEARING DATE: 3/20/2025
Legal
Standard
A party may move for summary judgment in any action or
proceeding if it is contended the action has no merit or that there is no
defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law
of summary judgment 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.)
“A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative defenses, one
or more claims for damages, or one or more issues of duty, if the party
contends that the cause of action has no merit, that there is no affirmative
defense to the cause of action, that there is no merit to an affirmative
defense as to any cause of action, that there is no merit to a claim for
damages, as specified in¿Section 3294 of the Civil Code, or that one or more
defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.”¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an
alternative to a request for summary judgment, the request must be clearly made
in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189
Cal.App.3d 1542, 1544.)¿ “[A] party may move for summary adjudication of a
legal issue or a claim for damages other than punitive damages that does not
completely dispose of a cause of action, affirmative defense, or issue of
duty pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿
To prevail, the evidence submitted must show there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless
the evidence leaves no room for conflicting inferences as to material facts;
the court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when¿a material fact is the witness’s¿state of mind and
“that fact is sought to be established solely by the [witness’s] affirmation
thereof.” (CCP, § 437c(e).)¿
Once the moving party has met their burden, the burden
shifts to the opposing party “to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.” (CCP §
437c(p)(1).) “[T]here¿is no
obligation on the opposing party... to establish anything by affidavit unless
and until the moving party has by affidavit stated facts establishing every
element... necessary to sustain a judgment in his favor.”¿(Consumer Cause,
Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿
¿
“The pleadings play a key role in a summary judgment
motion. The function of the pleadings in a motion for summary judgment is to
delimit the scope of the issues and to¿frame¿the outer measure of materiality
in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013)
213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the
burden of a defendant moving for summary judgment only requires that he or she
negate plaintiff's theories of liability¿as alleged in the complaint;
that is, a moving party need not refute liability on some theoretical
possibility not included in the pleadings.” (Ibid.)¿
EVIDENTIARY ISSUES
Plaintiff’s objections to the Tao Declaration are
OVERRULED.
Defendant’s objections to the Williams, Ingber, Joseph
and Lefkowitz Declarations are OVERRULED.
Analysis
Defendant Mehryar Taban moves for summary
judgment/adjudication as to each cause of action and Plaintiff’s claim for punitive
damages.
Issues 1, 2, and 4: Medical Malpractice and Informed
Consent
A prima facie case for medical
malpractice consists of (1) a duty to conform to the relevant standard of care;
(2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal
connection between the negligent conduct and the injury; and (4) resulting
damage. (Lattimore v. Dickey¿(2015) 239 Cal.App.4th 959, 968.)¿
Duty is measured by the standard of
care in the medical community.¿(Munro v. Regents of the University of
California¿(1989) 215 Cal.App.3d 977.) A¿healthcare provider is negligent
if he or she fails to use the level of skill, knowledge, and care in diagnosis
and treatment that other reasonably careful healthcare providers of the same
type would use in the same or similar circumstances. (Landeros¿v. Flood¿(1976)
17 Cal.3d 399, 408; see¿Elam v. College Park Hospital¿(1982) 132 Cal.
App. 3d 332 [every hospital is responsible for acting with due care to
investigate and confirm the competency of physicians and to monitor
those¿physicians to assure that patients receive the proper care].)¿As the
practice of medicine is not within the common knowledge of lay persons, expert
opinion testimony is necessary to establish the standard of care. (Jambazian¿v.
Borden¿(1994) 25 Cal.App.4th 836, 844.)
“The law is well settled that in a
personal injury action causation must be proven within a reasonable medical
probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp.
(1985) 163 Cal.App.3d 396, 402.) “Mere possibility alone is insufficient to
establish a prima facie case.” (Id.) “There can be many possible
‘causes,’ indeed, an infinite number of circumstances which can produce an
injury or disease.” (Id. at 403.) “A possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.” (Id.)
A defendant moving for summary
judgment in a medical malpractice action must “present evidence that would
preclude a reasonable trier of fact from finding it was more likely than not
that their treatment fell below the standard of care.”¿ (Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 305.) “Both the standard of care and
defendants’ breach must normally be established by expert testimony in a
medical malpractice case.”¿(Avivi v. Centro Medico Urgente Medical Center
(2008) 159 Cal. App. 4th 463, 467.) “When a defendant moves for summary
judgment and supports his motion with expert declarations that his conduct fell
within the community standard of care, he is entitled to summary judgment
unless the plaintiff comes forward with conflicting expert evidence.”¿(Munro
v. Regents of University of California (1989) 215 Cal. App. 3d 977,
984-985.)¿An expert declaration, if uncontradicted, is conclusive proof as to
the prevailing standard of care and the propriety of the particular conduct of
the health care provider.¿(Starr v. Mooslin (1971) 14 Cal. App. 3d 988,
999.)¿
The complaint alleges that in 2015,
Plaintiff sought assistance from Defendant to address her bulging and uneven
eyes. (Compl., ¶ 6.) Defendant recommended a two-step operation to reposition Plaintiff's
eyes within the sockets and achieve symmetry in her eyelids. (¶ 7.) The process
involved an initial orbital decompression followed by an installation of an
orbital rim surrounding the eye’s surface. (Id.) After the first operation,
Defendant assured Plaintiff that everything would come together after
completing the second operation. (¶ 8.) Due to financial constraints, Plaintiff
had to wait and save funds for the second surgery. (Id.) After saving for seven
years, Plaintiff proceeded with the second operation. (¶ 9.) Defendant
performed an upper eyelid lift, which he claimed would eliminate excess saggy
skin and alleviate dryness and redness. (Id.)
On May 12, 2022, Plaintiff
underwent the second operation. However,
the filler she received turned out to be a brief pin-prick procedure lasting
only a few minutes. (Compl., ¶ 10.) Plaintiff did not observe any immediate
results following the second operation. (¶ 11.) As such, the complaint alleges
that Defendant failed to fulfill the promised operations. (¶¶ 12-13.) No
orbital rims were installed, and no MRI or CT scans were conducted in advance
to enable rim placement. (Id.) Defendant admitted that he had not resolved
Plaintiff's bulging eye and that there was nothing he could do about it. (¶ 14.)
However, prior to the surgery, he had led Plaintiff to believe that he had
removed enough bone during the first operation to achieve facial symmetry and
eliminate the bulge after the second operation. (Id.) Additionally, contrary to
his promises, Defendant never addressed Plaintiff’s right eye, which continues
to bulge. (¶ 15.)
On May 12, 2022, Plaintiff
underwent a medical consultation with Defendant, which was the culmination of
years of treatment with the expectation that completing the second operation
would result in improved symmetrical and non-bulging eyes
for Plaintiff. (Compl., ¶ 17.) Defendant negligently examined, diagnosed, cared
for, treated, and provided necessary medical care for Plaintiff, starting from
the first operation in 2015 and continuing through the second operation in May
2022. (Id.) Defendant overrepresented what he could do, failed to fulfill his
claims of treatment or actions, and performed substandard work. (¶ 18.) As a
result, Plaintiff suffered from adverse outcomes, including loose skin, damaged
cornea, dryness/redness, headaches, double vision, lack of symmetry, and
continued bulging of the eyes. (¶ 19.)
Defendant also allegedly did not
disclose to Plaintiff the potential results and risks of an alternative
including the important information surrounding these factors before these
procedures. (¶ 35.) As a result of the undisclosed information, Plaintiff was
harmed. (¶ 36.)
In his moving papers, Defendant
presents evidence that he complied with his duty of care with respect to the alleged
breaches. Defendant presents the declaration of Dr. Tao, a board-certified
ophthalmologist specializing in oculofacial and orbital surgery. Dr. Tao opines that, to a reasonable degree
of medical probability, the care and treatment of Plaintiff was at all times
within the standard of care, including the informed consent process, the
surgeries themselves, and the post-operative management. (UMF 24.) According to
Dr. Tao, Dr. Taban acted within the standard of care in properly advising
Plaintiff of the risks, benefits, and alternatives to the surgeries he
performed on Plaintiff on both October 12, 2015, and May 12, 2022. (Tao Decl.,
¶¶ 6-11.) Plaintiff signed informed consent documentation in advance of these
surgeries advising her of the risks of surgery, including but not limited to
vision, eyelid, health, nerve damage, scarring, and anesthesia complications. Dr.
Tao provides that no guarantee or assurance could be made to a patient that
they would be happy with the result considering the nature of the surgeries. In
addition, Dr. Taban’s surgical technique, choice of procedure, and performance
of the procedure were appropriate and within the applicable standard of care.
(¶ 8.) In his post-surgery treatment of Plaintiff, Dr. Taban properly advised
Plaintiff post-operatively as to the results of surgery including why he did
not place infraorbital rim implants. (¶ 9.) He also properly examined and
diagnosed Plaintiff and provided reasonable treatment recommendations. (Id.) He
was correct in advising Plaintiff that it could take up to a year post surgery
to fully heal so it was premature to proceed with further surgery. (Id.) His
post-operative recommendations were appropriate and represented sound medical
judgment. (Id.) Dr. Tao also demonstrates a lack of medical causation by
opining that no conduct on the part of Dr. Taban caused or contributed to any
of Plaintiff’s alleged injuries or damage. (¶ 11.)
Defendant further contends that
since Dr. Taban met the standard of care at all times and obtained informed
consent, Plaintiff’s claim for lack of informed consent fails as a matter of
law. (UMF 57-58, 64-66, 75-77.)
Plaintiff proffers the declaration
of her own expert, Dr. Lefkowitz, who presents a factually supported conflicting
opinion demonstrating that Defendant breached his duty of care towards Plaintiff.
Dr. Lefkowitz opined that Defendant’s sole reliance on “personal discussions
with patients to gain informed consent prior to surgery” falls below the level
and type of care that a reasonably competent Oculoplastic surgeon would use in
the same or similar circumstances since Defendant does not always ensure that
the written consent forms were filled out correctly and would simply delegate
that to his staff. (UMF 24, 148.) In addition, Defendant had a duty to
immediately disclose to Plaintiff that he had not performed the procedure that was
being performed. (UMF 24, 162.) When Plaintiff subsequently wrote to Defendant
after her surgery and asked him to confirm that he had placed the rim implants,
he had a duty to disclose to her that he had not performed that procedure, and
his response to her was misleading and created the false impression that he had
placed rim implants. (Id.) To a reasonable degree of medical probability,
Defendant’s acts and omissions, including his failure to disclose this
information to Plaintiff, was a substantial factor in bringing about her
injuries as she will have to undergo an entirely new surgery, including
additional risks, pain and expense, in order to have rim implants placed. (UMF
24, 163.) Therefore, Plaintiff presents conflicting expert evidence on breach
and causation. As such, there are numerous disputes of material fact.
Furthermore, other disputes of
material fact preclude summary adjudication of the medical malpractice causes
of action. Defendant prepared a surgical plan that included placement of rim
implants, which Plaintiff paid for. (UMF 18, 152.) Defendant not only failed to
place the rim implants and to advise Plaintiff of the same, but he then
intentionally attempted to conceal this information from Plaintiff by giving
her the false impression that he had placed them. (UMF 17-19, 24-25, 162.) Defendant
assured her that “there are definitely silicon implants present under your
eyes.” (UMF 154.) To the contrary, Plaintiff’s experts declare that CTs show no
evidence of implants. (UMF 155-156.) Plaintiff’s expert likewise opines that
this violated his professional duty of disclosure, i.e., that Dr. Taban had a
duty to disclose that he had not performed the procedure paid for by Plaintiff.
Accordingly, the motion for summary
judgment is DENIED. The motion for summary adjudication is DENIED as to issue
nos. 1, 3, and 4.
Issue no. 2: Fraud
The elements of a claim for fraud
are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack
of a reasonable ground for belief in the truth of the representation; (3)
intent to induce reliance; (4)¿actual and justifiable reliance by the
plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid.
& Guar. Co. (1987) 192 Cal.App.3d 684, 693.) Suppression of
a material fact by one who is bound to disclose it constitutes fraud. (Civ.
Code § 1710(3).) “‘[T]he elements of an action for fraud and deceit based on
concealment are: (1) the defendant must have concealed or suppressed a material
fact, (2) the defendant must have been under a duty to disclose the fact to the
plaintiff, (3) the defendant must have intentionally concealed or suppressed
the fact with the intent to defraud the plaintiff, (4) the plaintiff must have
been unaware of the fact and would not have acted as he did if he had known of
the concealed or suppressed fact, and (5) as a result of the concealment or
suppression of the fact, the plaintiff must have sustained damage.’
[Citations.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
162 Cal.App.4th 858, 868.)
Statements of opinion are not
actionable under theories of fraud. (Gentry v. eBay, Inc. (2002) 99
Cal.App.4th 816, 835.) “[T]he law is well established that actionable
misrepresentations must pertain to past or existing material facts. Statements
or predictions regarding future events are deemed to be mere opinions which are
not actionable.” (Cansino v. Bank of America (2014) 224 Cal.App.4th
1462, 1469.)
As to the fraud cause of action,
Plaintiff alleges that Defendant made representations to Plaintiff claiming
that he could achieve symmetry and improve the bulging appearance of her eyes.
(Compl., ¶ 24.) In reality, Defendant knowingly exaggerated his capabilities
and induced Plaintiff to undergo his care and treatment by providing false
statements and/or concealing relevant information. (Id.) Defendant failed to
disclose to Plaintiff that she would be left with permanent bulging eyes. (Id.)
If this were the case, he should have informed her during the initial
appointment, saving her from years of false expectations. (Id.) Plaintiff was
induced to proceed with a course of action that has left her with a less
attractive appearance and in a more challenging situation than before. (¶ 25.) Defendant
failed to improve Plaintiff's appearance, eye bulging, dryness/redness, double
vision, and the asymmetry of her eye level, despite promising to address these
issues. (Id.) Moreover, Defendant assured Plaintiff that “bone had been removed,”
which turned out to be a significant misrepresentation. (Id.) He specifically
promised to perform orbital surgery to alleviate eye protrusion or reduce its
appearance, while also claiming that the end result would grant Plaintiff
"almond-shaped eyes." However, a review of the records indicates that
he did not fulfill these promises. Instead, his actions amounted to minor and inconsequential
bone removal. (Id.) Plaintiff justifiably relied on the misrepresentations by
Defendant. (¶ 28.) Plaintiff has suffered harm in the form of financial costs
related to the operation, physical pain, emotional distress, mental anguish,
and being left in a worsened condition. (Id.) Plaintiff endured years of being
in a less attractive state while funding the second operation based on a
deceptive plan. (Id.) Plaintiff incurred medical expenses for care and
treatment and will have to incur future expenses and treatment to repair the
damages Defendant did to her. (¶ 29.)
As
discussed, Defendant presented the opinion of Dr. Tao, who opined that Dr. Taban
complied at all times with the standard of care in his care and treatment of
the Plaintiff, and that Plaintiff was properly advised of the risks and
complications of surgery. Plaintiff was aware that there were no guarantees of
success, there was a chance of failure, and Plaintiff could look worse as a
result of Dr. Taban’s surgeries. (UMF 7, 31-32, 40.) Critically, Defendant
presents evidence that Dr. Taban did not mispresent or conceal facts to
Plaintiff. (UMF 51.) Indeed, the deposition testimony establishes that Dr.
Taban made no guarantees or specific representations, and that Plaintiff was
unaware of any information that Dr. Taban withheld. (Williams Depo., pp. 47-50;
74-76; 77-78; 133-134; Taban Depo. pp. 56-61, 74-79; 82-84; 85-89.)
Plaintiff fails to dispute this
material fact with substantial evidence showing Dr. Taban misrepresented or
concealed any particular material facts concerning the surgery. Plaintiff cites
her own declaration. However, Plaintiff’s declaration only establishes that several
months after the surgery, on August 16, 2022, Plaintiff emailed Dr. Taban,
asking to confirm that he put rim implants in her eyes, and that he responded
“There are definitely silicone implants present under your eyes. You might
benefit from additional filler injection on top of the implants. I’ll be happy
to do that for you at only the cost of the filler next time I see you (if in person
visit).” (Williams Decl., ¶ 13.) However, this is a distinct and separate misrepresentation
from those alleged in the Complaint. (Compl., ¶¶ 24-25.) Even if properly
framed by the pleadings, Plaintiff has not logically established reasonable reliance
on such a representation since this representation occurred after the second
surgery. Even if considered misleading, or a breach a professional duty to
disclose what occurred during the second surgery, Plaintiff could not have
relied on this representation to undergo the prior treatment with Dr. Taban.
Plaintiff does not otherwise establish that this statement induced her to do or
refrain from doing anything. As such, Plaintiff has failed to show a dispute of
material fact as to Dr. Taban’s alleged misrepresentation and reliance thereon.
Accordingly, the motion is GRANTED
as to issue no 2.
Issue 5: Punitive Damages
The motion as to punitive damages
is MOOT, or alternatively, granted on the same grounds as the fraud cause of
action. The only claim in support of the punitive damages request was the claim
for fraud. (Compl., ¶ 31.) As discussed, the fraud claim must be adjudicated against
Plaintiff. Plaintiff is therefore unable to recover punitive damages from the
alleged fraud.