Judge Shirley K. Watkins, Case 20STCV32828 2023-04-03 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

MIKE ISMAIL, Plaintiff, vs. ISAAC KASHANI, D.D.S. et al., Defendants.		CASE NO: 20STCV32828 [TENTATIVE] ORDER RE: DEFENDANTS ISAAC KASHANI, D.D.S. AND ISAAC KAHEN KASHANI, D.D.S. A PROFESSIONAL CORPORATION’S MOTION FOR SUMMARY JUDGMENT Dept. T 8:30 a.m. April 3, 2023

[TENTATIVE] ORDER: Defendants Isaac Kashani, D.D.S. and Isaac Kahen Kashani, D.D.S., a Professional Corporation’s Motion for Summary Judgment is DENIED.

Defendants Isaac Kashani, D.D.S. and Isaac Kahen Kashani, D.D.S., a Professional Corporation (collectively, Defendants) moved for summary judgment (MSJ) against Plaintiff Mike Ismail’s (Plaintiff) Complaint. Plaintiff filed an opposition. Defendants did not file a reply.

Summary judgment must be granted where health care providers file a supportive expert declaration establishing conduct falling within the community standard of care, and opposing parties file no conflicting expert declaration. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123; Munro v. Regents of the Univ. of Cal. (1989) 215 Cal.App.3d 977, 984-85 (“‘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 …, unless the conduct required by the particular circumstances is within the common knowledge of the layman.’”). Summary judgment must be denied if an opposing expert declaration raises a triable issue as to whether a physician deviated from the standard of care, thereby causing an injury and actual loss or damage. (Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12-13.) Defendants argued that there is no triable issue of material fact as to the negligence elements of breach and causation. Defendants submitted the expert testimonies of Mark Lieberman,, D.D.S, Barry Vilkin, D.M.D., Mark Exler, D.D.S., and Alan Shelhamer, D.D.S. to support their contention of lack of breach and causation. (Defendants’ Separate Statement of Fact (DSSF) 1-34.) Defendants met their initial burden of proof and the burden transferred to Plaintiff.

In response, Plaintiff submitted the expert testimony of Michael Mulvehill, III, D.D.S., Nadim Baba, D.M.D., and Marisa Chang, M.D. to show that Defendants’ treatment fell below the standard of care and the breach caused Plaintiff’s injuries. (Plaintiff’s Statement of Disputed Facts (PSDF) 9, 10, 22, 33, and 34.)

Because Plaintiff submitted expert testimony to dispute Defendants’ expert testimony as to the elements of breach and causation, there are triable issues of fact. Plaintiff met his burden of proof on the MSJ.

Defendants’ MSJ is DENIED.

[TENTATIVE] ORDER:
Defendant Rafi Rafiee, D.D.S.’s Motion for Summary Judgment is DENIED.

Defendant
Rafi Rafiee, D.D.S. (Defendant) moved for summary judgment (MSJ) against
Plaintiff Mike Ismail’s (Plaintiff) Complaint.

Summary
judgment must be granted where health care providers file a supportive expert
declaration establishing conduct falling within the community standard of care,
and opposing parties file no conflicting expert declaration. (Powell
v. Kleinman (2007) 151 Cal.App.4th 112, 123; Munro v. Regents of the
Univ. of Cal. (1989) 215 Cal.App.3d 977, 984-85 (“‘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 …, unless the conduct required
by the particular circumstances is within the common knowledge of the
layman.’”). Summary judgment must be
denied if an opposing expert declaration raises a triable issue as to whether a
physician deviated from the standard of care, thereby causing an injury and
actual loss or damage. (Tortorella v. Castro (2006) 140 Cal.App.4th 1,
12-13.) Defendant argued that there is
no triable issue of material fact as to the negligence elements of breach and
causation. Defendant submitted the
expert testimony of Todd Yamada, D.D.S to support their contention of lack of
breach and causation. (Defendant’s
Separate Statement of Fact (DSSF) 1-88.)
Defendant met his initial burden of proof and the burden transferred to
Plaintiff.

In
response, Plaintiff submitted the expert testimony of Michael Mulvehill, III,
D.D.S., Nadim Baba, D.M.D., and Marisa Chang, M.D. to show that Defendant’s
treatment fell below the standard of care and the breach caused Plaintiff’s
injuries. (Plaintiff’s Statement of
Disputed Facts (PSDF) 45-54, 57-64, 66-68, 70, 73, 76, and 80-87.)

Defendant’s
evidentiary objections to the declaration of Drs. Mulvehill, Baba, and Chang
are ruled upon separately.

Because
Plaintiff submitted expert testimony to dispute Defendant’s expert testimony as
to the elements of breach and causation, there are triable issues of fact. Plaintiff met their burden of proof on the
MSJ.

Defendant
argued that Plaintiff was required to submit a separate statement of
“additional” facts. (Cal. Rules of
Court, rule 3.1350(f)(3).) The Court
finds that Plaintiff violated the rule.
However, the Court exercises its discretion to consider the additional
facts listed in the second/right hand column of Defendant’s separate
statement. (Oldcastle Precast, Inc.
v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568.) The Court does not find that Defendant was
prejudiced from Plaintiff’s failure to submit a separate statement of
“additional” facts because Defendant submitted evidentiary objections
addressing the new evidence submitted by Plaintiff.