Judge Ralph C. Hofer, Case Number: 22GDCV00323, Date: 2024-02-09 Tentative Ruling

TENTATIVE RULING

Calendar: 5

Date: 2/9/2024

Case Number: 22 GDCV00323 Trial date: July 1, 2024

Case Name: Tashchyan v. Stepanyan, et al.

MOTIONS FOR SUMMARY JUDGMENT (2)

(Or, in the Alternative, Summary Adjudication)

Moving Party: Defendant Stepanyan Surgical Arts Center

Defendant Martin Stepanyan, D.D.S.

Responding Party: Plaintiff Stepan Tashchyan

Relief Requested:

Order granting summary judgment or, in the alternative, summary adjudication on plaintiff’s five causes of action

CAUSES OF ACTION: from First Amended Complaint

1) Dental Malpractice—Breach of Standard of Care

2) Dental Malpractice—Negligent Misrepresentation

3) Dental Malpractice—Failure to Properly Keep or Provide Medical Records

4) Breach of Oral Contract

5) Specific Performance

SUMMARY OF COMPLAINT:

Plaintiff Stepan Tashchyan alleges that in May of 2019 plaintiff entered into an oral contract with defendants Martin Stepanyan, D.D.S. and Stepanyan Surgical Arts Center wherein defendants promised to provide dental care and procedures with guaranteed outcomes in exchange for plaintiff’s payment of certain sums of money. Plaintiff alleges that from May of 2019 plaintiff was under the dental care of defendants, and in August 2019 defendants performed a surgical procedure on plaintiff for extraction of teeth, placement of maxillary implants, placement of implant fixtures, and bone grafting. In March of 2020, defendants performed further procedures, including uncovering.

Plaintiff alleges that shortly thereafter plaintiff began experiencing problems with the implants, such as ill-fitting implants and pieces that started to loosen and fall out, which caused plaintiff to suffer significant pain. Plaintiff immediately informed defendant of the issues and asked for help, but defendants were unable to or refused to correct the issues. Plaintiff alleges that because defendants were not responding to plaintiff’s requests to fix the problems, plaintiff had to seek treatment from another dental surgeon to correct the issues which caused plaintiff to incur additional costs. The First Amended Complaint alleges that defendants breached the standard of care for dentists and dental surgeons practicing in their community, causing plaintiff injuries and damages, and also breached the contract between the parties.

Plaintiff further alleges that he has made repeated requests for his medical records from defendants, but his requests were denied or ignored. Plaintiff alleges that plaintiff contacted the Dental Board of California and filed a complaint, as a result of which some documents were finally sent to plaintiff but that the documents were missing important records, such as radiology from before and after the procedure, complete chart notes, surgical notes, and periodontal records prior to the procedure. Plaintiff alleges that defendants’ failure to make, keep, or provide plaintiff’s complete medical records exacerbated plaintiff’s injury and delayed his ability to get further treatment and mitigate his damages. It is also alleged that defendants’ refusal to provide complete medical records violates Health & Safety Code section 123100, et seq.

ANALYSIS:

Defendants Stepanyan Surgical Arts Center and Martin Stepanyan, D.D.S. have brought virtually identical motions for summary judgment/adjudication. Plaintiff in opposition has filed very similar oppositions to each motion.

Procedural

Request for Continuance

The oppositions make a brief argument that if the court is inclined to grant the motion, the hearing should be continued.

CCP § 437c (h) provides

“If it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify the opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”

Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances. The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that

“A declaration in support of a request for a continuance under section 437c, subdivision (h) must show:

(1) the facts to be obtained are essential to opposing the motion;

(2) there is reason to believe such facts may exist; and

(3) the reasons why additional time is needed to obtain these facts.”

Cooksey, at 254, citations, internal quotations omitted.

It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4^th 149, 167. Where the declaration is not timely submitted, or fails to make the required showing, then whether to grant a continuance is a matter within the trail court’s discretion, and the trial court’s ruling will be reviewed for abuse of discretion. Cooksey, at 254.

In Cooksey, the Second District affirmed the trial court’s denial of a request for a continuance, as the declaration was not only untimely but inadequate, as it “provided no explanation how the outstanding discovery was relevant to the issues raised by respondent’s motion,” and failed to show diligence in obtaining the outstanding discovery, so failed to show a justifiable reason why the essential facts could not be presented.

In Cooksey, a medical malpractice case, the declaration requesting a continuance was not filed until the day of the hearing on the summary judgment motion, and there was no indication how outstanding discovery was necessary for the opposition. In addition, the declaration contained no explanation of why the discovery sought could not have been initiated sooner, and counsel acknowledged that he had intentionally delayed discovery for tactical reasons, to delay disclosure of the medical expert’s opinion as long as possible. See Cooksey, at 255-257.

Here, the memoranda in support of the oppositions briefly indicate that defendant has not yet been deposed, despite several efforts and delays, and the deposition is now scheduled for March 5, 2024.

The declarations of counsel submitted with each opposition do not mention a request for continuance, and do not indicate that facts essential to justify the opposition may exist but cannot, for reasons stated, now be presented. The declarations do not show or mention that there are facts to be obtained which are essential to opposing the motions, there is reason to believe such facts may exist, or the reasons why additional time is needed to obtain these facts.

The declarations at best state that several exhibits are attached to the declarations, including, “a true and correct copy of the deposition notices for the deposition of Defendant previously served.” [Aroustamian Declarations, paras. 2 (vi)].

The attached deposition notices show that a deposition of defendant was originally noticed in May of 2023, was then noticed for June and then July, and is now noticed for March 5, 2024. [Aroustamian Declarations, para. 2, Ex. 6]. There is no explanation why there has been such a delay in obtaining the deposition, and particularly why it was not sought more urgently in the more than 75 days since these motions were served, so no showing of diligence. It is also not explained what facts plaintiff expects to obtain at this deposition which would defeat the motions. The declarations accordingly do not meet the requirements with respect to obtaining a continuance, so the granting of a continuance is discretionary with the court.

The showing does not explain how deposing defendant could assist in defeating these motions, which could be defeated by a medical expert based on the facts and medical records in this matter, or by evidence within the knowledge of plaintiff concerning his alleged his lack of informed consent, promises and representations made to plaintiff, and plaintiff’s alleged receipt of incomplete medical records.

The court does not continue the hearings on this showing.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendants Stepanyan Surgical Arts Center and Martin Stepanyan, D.D.S. seek to establish that plaintiff will be unable to establish all elements of his causes of action.

Issue 1- THE FIRST CAUSE OF ACTION FOR NEGLIGENCE – DENTAL MALPRACTICE IS BARRED BECAUSE EXPERT REVIEW ESTABLISHES DEFENDANT, DR. STEPANYAN, MET THE STANDARD OF CARE AT ALL TIMES, AND DID NOT NEGLIGENTLY CAUSE MR. TASCHYAN’S ALLEGED INJURIES

To establish a cause of action for professional negligence against health care providers such as Dr. Stepanyan and his professional corporation, plaintiff must plead and prove the following elements:

1) Defendant owed a legal duty to use due care;

2) Defendant’s breach -- the negligent act or omission; and

3) The breach as the proximate or legal cause of the resulting injury.

Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 338.

The California Supreme Court has noted in connection with professional malpractice claims against health care providers that it has:

“consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.”

Landeros v. Flood (1976) 17 Cal.3d 399, 408, citations omitted.

With respect to a claim for medical negligence:

“’The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ (Sinz v. Owens (1949) 33 Cal.2d 749, 753 [205 P.2d 3, 8 A.L.R.2d 757]; accord, Brown v. Colm (1974) supra, 11 Cal.3d 639, 643; Cobbs v. Grant (1972) 8 Cal.3d 229, 236-237 [104 Cal.Rptr. 505, 502 P.2d 1]; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34, 29 A.L.R.2d 485].)”

Landeros v. Flood (1976) 17 Cal.3d 399. See also Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 114.

With respect to medical causation:

“…medical causation can only be determined by expert medical testimony. (Gin Non Louie v. Chinese Hospital Assn. (1967) 249 Cal.App.2d 774, 784 [57 Cal.Rptr. 906]; Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635 [21 Cal.Rptr. 646].)”

Salasguevera v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385.

Under Evidence Code section 801, the opinion testimony of an expert is limited to opinions:

“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates...”

Defendants rely on the virtually identical declarations of Dr. Anthony Pogrel, M.D., D.D.S., M.S.D., F.A.C.P. in support of their motions. [Notice of Lodgement, Ex. F].

The declaration adequately establishes Dr. Pogrel’s qualifications to testify as an expert, as Dr. Pogrel is a licensed oral and maxillofacial surgeon, with the appropriate education, training, and professional experience, and is familiar with the standard of care required for doctors of oral and maxillofacial surgery in the California community. [Pogrel Decl. ¶¶ 3, 4]. Dr. Pogrel’s CV is attached as Exhibit 1. [Pogrel Decl. ¶ 3, Ex. 1].

The declaration also establishes that Dr. Pogrel has reviewed the appropriate patient medical records, including the records from Stepanyan Surgical Arts Center. [Pogrel Decl. ¶ 5]. Dr. Pogrel has also reviewed the FAC in this matter, various discovery responses, and the transcript of the deposition of plaintiff in this matter. [Pogrel Decl. ¶ 5]. Copies of the medical records from Stepanyan Surgical Arts Center are submitted along with a declaration of Dr. Stepanyan authenticating the records. [Ex. K, Stepanyan Decl. ¶ 3, NOL, Exs. C-E].

Dr. Pogrel provides substantial testimony setting forth an understanding of the facts, and the reasons for Dr. Pogrel’s opinions.

Specifically, Dr. Pogrel states the opinion that Dr. Stepanyan complied with the standard of care for oral and maxillofacial surgery at all times during his treatment and care of plaintiff, and explains that plaintiff never consulted with Dr. Stepanyan for “filling procedures” as alleged in the FAC, so Dr. Stepanyan could not have breached the standard of care for rendering such procedures, that the time frame for the placement and implant procedures for the eight implants was within the standard of care, that Dr. Stepanyan appropriately sent plaintiff to a third-party restorative doctor for temporary upper bridge restoration, and that there is no evidence that any of the implants placed by Dr. Stepanyan failed or loosened at any time. [Pogrel Decl. ¶ 7, (a)-(e)]. It is also the expert’s opinion that Dr. Stepanyan’s post-operative and follow-up care was appropriate and within the standard of care, and that the records maintained by defendants regarding the treatment were appropriate for the treatment provided. [Pogrel Decl. ¶ 7 (f)-(i)].

Dr. Pogrel also states, with respect to informed consent, his opinion that “Dr. Stepanyan’s August 7, 2019 and March 12, 2020 Dental Implant Informed Consent forms were appropriate and within the standard of care and adequately displayed the known risks of the procedures to be performed.” [Pogrel Decl. ¶ 7 (b)].

Dr. Pogrel states his professional opinion with respect to medical causation:

“Based on my knowledge, skill, education, training and experience, and a thorough review of the medical records described above, it is my opinion to a reasonable degree of medical and dental probability, that no act or omission on the part of Dr. Stepanyan was a substantial factor in causing or contributing to any injury or damage to Mr. Tashchyan.”

[Pogrel Decl. ¶ 8].

It is held that “[w]hen 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, 985, quotation omitted.

Here, the declaration of Dr. Pogrel sufficiently establishes that the conduct of the moving defendants fell within the applicable standard of care, and the burden shifts to plaintiff to raise triable issues of material fact.

The Second District holds that in a medical malpractice case, if a plaintiff’s expert declaration in opposing summary judgment sets forth specific factual breaches of duty, the defendant doctor’s motion for summary judgment should be denied. Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.

Plaintiff in opposition to the motions relies on the virtually identical declarations of Sharareh Tajbakhsh, D.D.S., M.S.D., F.A.C.P.

The declaration adequately establishes the expert’s qualifications to render opinions on the medical-dental standard of care applicable in the community to the treatment of patients like the plaintiff in this case, as Dr. Tajbakhsh is a licensed dentist and board certified prosthodontist with the appropriate education, training, and professional experience, and is familiar with the standard of care required for dentists, doctors of oral and maxillofacial surgery, and prosthodontists in the California community. [Tajbakhsh Decl. ¶¶ 2, 3]. Dr. Tajbakhsh’s CV is attached as Exhibit A. [Tajbakhsh Decl. ¶ 2, Ex. A].

Dr. Tajbakhsh is of the opinion that Dr. Stepanyan breached the standard of care by failing to adequately plan and coordinate the prosthodontic and surgical components involved in plaintiff’s treatment, failing to exercise the level of skill, knowledge, judgment and prudence required in performing plaintiffs’ prosthodontic and surgical procedure and follow-up treatment, keeping grossly inadequate treatment records, and failing to obtain plaintiff’s informed consent for the treatment provided. [Tajbakhsh Decl. ¶ 5, 8-16]. Dr. Tajbakhsh also notes that Dr. Margossian, who subsequently treated plaintiff, noted problems in clinical notes which included that the implants placed in the posterior were not positioned properly, the position of the implants and depth of the abutments were not adequate, causing to bridge to come out, the span of the bridge was too long, and the implants were placed too far apart to accommodate the bridge. [Tajbakhsh Decl. ¶ 16]. Dr. Tajbakhsh also opines that Dr. Stepanyan, who is not a prosthodontist, fell below the applicable standard of care in not referring the patient to a prosthodontist. [Tajbakhsh Decl. ¶ 15].

“Mr. Tashchyan was not informed about what type of prosthesis he was going to receive and what his options were such as implant supported bar with acrylic teeth, removable implant supported prosthesis, or implant supported fixed prosthesis. There is no evidence that Mr. Tashchyan gave his informed consent for the prosthetic treatment rendered by Dr.

Stepanyan. No informed consent form was signed for the prosthetic treatment rendered.”

Dr. Tajbakhsh also notes that the informed consent form of August 7, 2019 reads, “if a crown, bridge, or denture is to be attached to the implants, this will be done by a restorative doctor of patient’s choice,” suggesting defendants would not be providing the restorative work, and that if defendants did not intend to provide restorative dental work, under the proper standard of care, Dr. Stepanyan should not have done any surgical placement for the patient without consulting with the restorative dentist. [Tajbakhsh Decl. ¶ 12].

Dr. Tajbakhsh is also of the opinion that “to a reasonable degree of medical and dental probability,” defendants’ treatment of plaintiff “that fell below the applicable standard of care caused or contributed to Mr. Tashchyan’s injuries and damage.” [Tajbakhsh Decl. ¶ 6].

The declaration sufficiently sets forth specific factual breaches of duty to raise triable issues of fact with respect to whether the conduct of defendants fell within the standard of care and was the cause of plaintiff’s claimed injuries, as well as triable issues with respect to whether plaintiff will be able to establish his claim on the basis of a lack of informed consent. The motion therefore is denied as to the first cause of action.

The elements of a claim for negligent misrepresentation are: 1) assertion of a false statement; (2) honest belief by the speaker that the statement is true, but without reasonable ground for such belief, (3) justifiable reliance by the plaintiff; and (4) resulting damage. See Anderson v. Deloitte & Touche (1997) 56 Cal.App.4^th 1468, 1474-1476.

Defendants argue that plaintiff will be unable to establish this cause of action because at no time did Dr. Stepanyan promise or warrant a specific successful outcome from the procedures provided nor that plaintiff would no longer have dental issues. [Stepanyan Decl., para. 6]. Defendants also argue that the informed consent forms plaintiff executed expressly stated that plaintiff understood that “the doctor cannot guarantee the results of the procedure,” and also acknowledged that follow up visits or additional treatment “may be needed.” [UMF Nos. 36, 37, and evidence cited, Exs. D, E].

As discussed above, plaintiff’s expert points out that there is an ambiguity raised in the August 7, 2019 agreement which expressly states that, “If a crown, bridge or denture is to be attached to the implants, this will be done by a restorative doctor of patient’s choice,” when Dr. Stepanyan apparently intended at the time to do such work for plaintiff, and plaintiff understood that Dr. Stepanyan would be doing that work. [Tajbakhsh Decl. ¶ 12].

“So I said, well, Doctor, there are, like, 12 screws that you have to input. How can I endure it? How can I endure if you' re going to cut my gums 12 times?”

The doctor then told plaintiff the price for being put under which plaintiff would have to pay. [Tashchyan Depo., p. 30:23-25].

This showing is sufficient to support a claim for negligent misrepresentation with respect to what services were represented would be provided, so triable issues remain on at least one theory. [See Response to UMF No. 38, and evidence cited]. The motion as to this cause of action is denied.

“The Legislature finds and declares that every person having ultimate responsibility for decisions respecting his or her own health care also possesses a concomitant right of access to complete information respecting his or her condition and care provided.”

“(a) Notwithstanding Section 5328 of the Welfare and Institutions Code, and except as provided in Sections 123115 and 123120, any adult patient of a health care provider, … and any patient's personal representative shall be entitled to inspect patient records upon presenting to the health care provider a request for those records and upon payment of reasonable costs, as specified in subdivision (k)…. A health care provider shall permit this inspection during business hours within five working days after receipt of the request. The inspection shall be conducted by the patient or patient's personal representative requesting the inspection, who may be accompanied by one other person of their choosing.

(b)(1) Additionally, any patient or patient's personal representative shall be entitled to a paper or electronic copy of all or any portion of the patient records that they have a right to inspect, upon presenting a request to the health care provider specifying the records to be copied, together with a fee to defray the costs of producing the copy or summary, as specified in subdivision (k). The health care provider shall ensure that the copies are transmitted within 15 days after receiving the request….

(h) Any health care provider described in paragraphs (4) to (10), inclusive, of subdivision (a) of Section 123105 who willfully violates this chapter is guilty of unprofessional conduct. Any health care provider described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 123105 that willfully violates this chapter is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”

Defendants argue that defendants provided plaintiff all of his records in May of 2021, and that in June of 2021, plaintiff received a letter from the Dental Board informing plaintiff it had found no evidence of a violation of the Dental Practices Act. [UMF Nos. 42-44, and evidence cited, FAC, Ex. A, Ex. I].

Plaintiff also points out that his medical expert Dr. Tajbakhsh, has questioned the completeness of the records and x-ray records, supporting a reasonable inference that certain records were either generated but improperly not retained, or exist but were not provided to plaintiff, as required under statute. [Response to UMF No. 46, and evidence cited, Tajbakhsh Decl., para. 17]. Dr. Tajbakhsh points out specifically, for example, that “The communications with the laboratory do not seem to be complete as they do not correspond with the number of treatments received by Mr. Tashchyan.” [Tajbakhsh Decl. ¶ 17 c.].

The declaration also raises triable issues of material fact with respect to whether plaintiff can establish this cause of action on a theory that medical records were not properly kept by defendants. Specifically, Dr. Tajbakhsh states that “The medical records provided by Stepanyan Surgical Arts Center are limited, not complete, and below the applicable standard of care for medical record keeping for dental practitioners in the California community.” [Tajbakhsh Decl. ¶ 17]. Dr. Tajbakhsh specifically points to the communications with the lab appearing incomplete as set forth above, as well as the limited useability of the x-ray images, and lack of clarity and details in the chart notes. [Tajbakhsh Decl. ¶ 17 (a)-(c)].

Triable issues of fact have been raised. Hence, the motion as to this cause of action is denied.

“To prevail on a cause of action for breach of contract, the plaintiff must prove

Defendant again argues that Dr. Stepanyan made no oral assurances to plaintiff which would be considered enforceable, essentially making the same argument made above in connection with the negligent misrepresentation cause of action.

As discussed above, plaintiff has submitted evidence in opposition to the motion from which a reasonable inference can be drawn that Dr. Stepanyan entered into an oral contract with plaintiff that plaintiff would receive treatment from Dr. Stepanyan for an agreed upon price which would include everything and breached that oral contract by requiring plaintiff to pay for services to put him to sleep for the second surgery. [Tashchyan Depo., pp. 29:3-21; 30:13-25].

Defendants in the reply argue that plaintiff has conceded in the separate statement that Dr. Stepanyan did not promise a specific successful outcome. [See Response to UMF No. 59, “Undisputed.”]. However, this is not inconsistent with plaintiff’s position that there was an oral representation that there would be no hidden or additional charges for the treatment course, which is a valid theory, particularly when it would appear from all of the evidence before the court that the cost of having the patient put under for a significant dental surgery should have been anticipated by the dental professional before the course of treatment commenced.

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

Here, considering all the evidence before the court, triable issues of fact remain as to this cause of action. The motion accordingly is denied on this issue.

Defendants rely on the same facts discussed above with respect to the third cause of action, again arguing that plaintiff was provided with his entire medical chart. The separate statement on this issue simply states, “Defendant hereby incorporates Undisputed Material Facts Nos. 39-53, supra.” [UMF No. 60].

As discussed above, in response to those facts, plaintiff has submitted evidence supporting a reasonable inference that defendants did not provide plaintiff with his entire medical records, to which plaintiff is entitled. [See Responses to UMF Nos. 46, 47, 49-53, and evidence cited, Exs. 2, 3, 4, 5, Tajbakhsh Decl., para. 17]. Triable issues of fact have been raised. Therefore, the motion on this cause of action also is denied.

Plaintiff has submitted admissible expert testimony citing specific factual breaches of duty which raises triable issues of fact with respect to the establishment of medical negligence. See Hanson v. Grode (1999, 2^nd Dist.) 76 Cal.App.4th 601, 607. Specifically, plaintiff has presented evidence which raises triable issues of fact with respect to whether the conduct of defendants fell within the standard of care and whether those acts or omissions caused or contributed to plaintiff’s alleged injuries. [See Responses to UMF Nos. 29-31; Tajbakhsh Decl. ¶¶ 2-4, 6, 8-16].

Issue 2. THE SECOND CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION LACKS MERIT BECAUSE THERE WAS NO MISREPRESENTATION OF MATERIAL FACT MADE TO PLAINTIFF, NOR COULD PLAINTIFF HAVE REASONABLY RELIED UPON THE ALLEGED MISREPRESENTATION.

Plaintiff has raised triable issues of material fact with respect to whether plaintiff will be able to establish this cause of action based on a theory that defendants represented that plaintiff would receive all services from defendants for a specified price. [Response to UMF No. 38, and evidence cited, Aroustamian Decl., Ex. 1, Tashchyan Depo., p. 29:3-21; 30:13-25].

Issue 3. THE THIRD CAUSE OF ACTION FOR FAILURE TO PROPERLY KEEP AND/OR PROVIDE MEDICAL RECORDS IS BARRED BECAUSE DEFENDANT COMPLIED WITH HEALTH AND SAFETY CODE §123110 AND THE DENTAL BOARD OF CALIFORNIA FOUND DR. STEPANYAN HAD NOT VIOLATED THE DENTAL PRACTICES ACT.

Plaintiff has raised triable issues with respect to whether defendant failed to properly provide all medical records to plaintiff, as well with respect to whether defendant failed to comply with the applicable standard of care with respect to the keeping of those records. [Responses to UMF Nos. 46, 47, and evidence cited, Aroustamian Decl., Exs. 2-5; Tajbakhsh Decl., para. 17 and para. 17, subdivisions (a)-(c)].

Issue 4. THE FOURTH CAUSE OF ACTION FOR BREACH OF ORAL CONTRACT IS BARRED BECAUSE PLAINTIFF CANNOT ESTABLISH A VALID CONTRACT EXISTED WHEREIN DR. STEPANYAN MADE AN EXPRESS GUARANTEE OF A SPECIFIC OUTCOME.

Plaintiff has submitted evidence in opposition to the motion from which a reasonable inference can be drawn that Dr. Stepanyan entered into an oral contract with plaintiff that plaintiff would receive treatment from Dr. Stepanyan for an agreed upon price which would include everything and breached that oral contract by requiring plaintiff to pay for services to put him to sleep for the second surgery. [Tashchyan Depo., pp. 29:3-21; 30:13-25].

Issue 5. THE FIFTH CAUSE OF ACTION FOR SPECIFIC PERFORMANCE PROVIDING A COPY OF PLAINTIFF’S ENTIRE MEDICAL FILE AND ALL MEDICAL RECORDS IS BARRED BECAUSE PLAINITFF HAS BEEN PROVIDED, ON NUMEROUS OCCASIONS, HIS ENTIRE MEDICAL CHART WITH DEFENDANTS.

Plaintiff has submitted evidence supporting a reasonable inference that defendants did not provide plaintiff with his entire medical records, to which plaintiff is entitled. [See Responses to UMF Nos. 46, 47, 49-53, and evidence cited, Exs. 2, 3, 4, 5, Tajbakhsh Decl., para. 17].

Defendant Stepanyan Surgical Arts Center’s Objections to Plaintiff’s Declaration in Support of Opposition to Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication are OVERRULED as not in proper format.

Defendant Martin Stepanyan, D.D.S.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication:

Plaintiff has submitted evidence in opposition to the motion from which a reasonable inference can be drawn that Dr. Stepanyan entered into an oral contract with plaintiff that plaintiff would receive treatment from Dr. Stepanyan for an agreed upon price which would include everything, and breached that oral contract by requiring plaintiff to pay for services to put him to sleep for the second surgery. [Tashchyan Depo., pp. 29:3-21; 30:13-25].

Defendant Martin Stepanyan, D.D.S.’s Objections to Plaintiff’s Declaration in Support of Opposition to Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication are OVERRULED as not in proper format.

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