Judge: Ronald F. Frank, Case: 21STCV33519, Date: 2023-08-31 Tentative Ruling

Case Number: 21STCV33519    Hearing Date: November 14, 2023    Dept: 8

Tentative Ruling¿ 

¿¿ 

HEARING DATE:                 November 14, 2023¿ 

¿¿ 

CASE NUMBER:                   21STCV33519

¿¿ 

CASE NAME:                        Tony Talbert v. Marina Adams, et al.  

¿¿ 

MOVING PARTY:                Defendant, Marina Adams, DDS and Marina Adams, DDS, a Professional Dental Corporation dba New Image Dental

RESPONDING PARTY:       Plaintiff, Tony Talbert  

¿¿ 

TRIAL DATE:                       August 26, 2024

¿¿ 

MOTION:¿                              (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication

¿ Tentative Rulings:                 (1)  DENIED

I. BACKGROUND¿¿ 

¿¿ 

A.    Factual¿¿ 

On September 10, 2021, plaintiff Tony Talbert filed a complaint against Defendants, Marina Adams, DDA, a Professional Dental Corporation dba New Image Dental; Marina Adams, DDS, Jay Layson, DDS, Rachal Liverman, DDS, Ahmed Mataria, DDS, and DOES 1 through 30. On March 23, 2022, Plaintiff filed a First Amended Complaint (“FAC”) for:  (1) dental malpractice, (2) lack of informed consent, (3) battery, (4) intentional misrepresentation, (5) negligent misrepresentation, and (6) concealment against several defendants, including defendant Rachal Liverman, D.D.S..

Defendants, Marina Adams, DDS and Marina Adams, DDS, a Professional Corporation dba New Image Dental file a Motion for Summary Judgment. (“Adams Defendants”)

B. Procedural¿¿ 

            On June 16, 2023, Adams Defendants filed a Motion for Summary Judgment. On August 17, 2023, Plaintiff filed an opposition. On August 25, 2023, Adams Defendants filed a reply brief.

            On August 21, 2023, Defendant, Jay Layson, DDS, filed a stipulation by all parties to continue trial and all related dates.

II. EVIDENTIARY OBJECTIONS

Plaintiff’s Objections to Adams Defendants’ Evidence

Sustain: none.

Overrule: 1-5

Defendants’ Objections to Plaintiff’s Evidence

Sustain: none.

Overrule: 1-21

III. ANALYSIS¿ 

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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.)¿ “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.)¿ 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) 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.)¿ 

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 that cause of action or a defense thereto.¿¿¿ Here, the Court finds that the Adams Defendants have carried their initial burden and shifted the burden to the Plaintiff.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence that is admissible under the rules of evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

B.    Discussion 

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.)  “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.3d 977, 984-985.) 

The Court agrees with the Adams Defendants to the extent that the Opposition relies on apparent contradictions and conflicts in the Plaintiff’s own declaration and deposition testimony.  No triable issue can be or is raised by those conflicts.  But the Court disagrees with the Adamas Defendants that an expert cannot use conflicting sworn statements of a party as a foundation for the expert’s opinions.  While an expert may be impeached by showing that his or her reliance on such sworn statements is ill advised or by proof that certain of those statements are shown by other evidence to be untrue or self-serving, potential impeachment does not negate the expert’s opinions at the summary judgment phase. 

Here, both parties have introduced expert declarations. While the Adams Defendants argue that Dr. Howard’s expert declaration is unsupported by any reasoned explanation of why the underlying facts lead to the ultimate conclusion, the Court disagrees. Instead, pursuant to California Evidence Code § 801, the Court finds that the proper basis for Plaintiff’s expert opinion can be his special knowledge, skill, experience, training, and education. At the summary judgment phase, the Court does not act as the trier of fact who can weigh the qualifications and quality of the opinions provided by competing expert witnesses.  A pediatric orthodontist is competent to opine on orthodontics and dentistry, even if his or her opinion may be less specialized or less on point than the defense expert or individual defendant dentists.  Here, the Court finds that Dr. Howard’s expert declaration is not objectionably conclusory simply because his reasoning is not as extensive or detailed or focused as Dr. Harmatz’.  Nor can the Court sustain foundation objections to the opinions stated in Paragraphs 17-25 of the Howard Declaration merely because Dr. Howard did not, in his declaration, identify exactly which of the multiple dentists at the New Age Dental facility on which date violated the standards of care, or because he contradicts himself as to whether Plaintiff initially presented to the Defendants with nerve pain.  Those are issues for deposition and for the trier of fact to evaluate under the CACI instructions for expert opinion testimony.   Despite the sufficiency of the Adams Defendants’ expert to carry a moving party’s initial burden of proof on a summary judgment motion, the Motion for Summary Judgment is DENIED as Plaintiff’s expert raises several triable issues of material fact in paragraphs 17-25 of his opposing declaration. 

Plaintiff is ordered to provide notice.