Judge: Stephen Morgan, Case: 22AVCV00018, Date: 2022-09-08 Tentative Ruling
Case Number: 22AVCV00018 Hearing Date: September 8, 2022 Dept: A14
Background
This is a medical malpractice action. Plaintiff Paul Shaw (“Plaintiff”) alleges (1) in or about early 2020, Plaintiff consulted with and engaged for compensation the dental services of Defendant Sharona Kohanoff, DDS, (“Dr. Kohanoff”) and Dr. Kohanoff negligently diagnosed Plaintiff’s condition and failed to render the appropriate treatment; and (2) in December 2020, Dr. Kahonaff performed extensive treatment on Plaintiff negligently, causing Plaintiff chronic and permanent pain.
On January 14, 2022, Plaintiff filed his Complaint, alleging one cause of action for Medical Malpractice against Dr. Kohanoff and Defendant Lancaster Advanced Dental, Inc. (collectively “Defendants”).
On February 16, 2022, Defendants filed their Answer.
On April 14, 2022, Defendants filed the following motions: (1) Defendant Sharona Kohanoff, DDS,’s Motion for Order Establishing Admissions in Defendant Sharona Kohanoff, DDS,’s Request for Admissions, Set One; (2) Defendant Lancaster Advanced Dental, Inc.’s Motion for Order Establishing Admissions in Defendant Lancaster Advanced Dental, Inc.’s Request for Admissions, Set One; (3) Defendants Sharona Kohanoff, DDS, and Lancaster Advanced Dental, Inc.’s Motion to Compel Responses to Requests for Production; (4) Defendants Sharona Kohanoff, DDS, and Lancaster Advanced Dental, Inc.’s Motion to Compel Responses to Special Interrogatories, Set One; and (5) Defendants Sharona Kohanoff, DDS, and Lancaster Advanced Dental, Inc.’s Motion to Compel Responses to Form Interrogatories, Set One. Plaintiff did not oppose any of the motions and, as such, they were subsequently granted.
On June 20, 2022, Defendants filed their Motion for Summary Judgment.
No Opposition has been filed. “An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Cal. Code Civ. Proc. § 437c(b)(2).) The hearing is scheduled for September 08, 2022. As such, an Opposition was due on August 25, 2022. Should an Opposition be filed, it is now untimely.
On September 02, 2022, Defendants filed a Notice of Non-Opposition.
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Legal Standard
Standard for Motion for Summary Judgment – 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.) Cal. Code Civ. Proc.¿§437c(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.)¿¿¿¿
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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. (Cal.¿Code Civ.¿Proc.¿§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.)¿¿¿¿
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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. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿¿¿¿
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Discussion
Requests for Admissions (“RFAs”) Deemed Admitted – On April 14, 2022, Defendants filed two motions for RFAs to be deemed admitted: (1) Defendant Sharona Kohanoff, DDS,’s Motion for Order Establishing Admissions in Defendant Sharona Kohanoff, DDS,’s Request for Admissions, Set One; and (2) Defendant Lancaster Advanced Dental, Inc.’s Motion for Order Establishing Admissions in Defendant Lancaster Advanced Dental, Inc.’s Request for Admissions, Set One.
Defendants presented that they each served their RFAs on February 16, 2022 to Plaintiff’s address of record by mail. Thus, responses were due March 18, 2022. (Motion to Deem RFAs Admitted for each defendant respectively, Exhs. A.) Defendants’ counsel, Ted D. Conley (“Conley”), had attached his attempt to contact Plaintiff via mail on March 30, 2022 (Id., Exhs. B) and a declaration stating under penalty of perjury that Plaintiff neither responded to the RFAs nor requested an extension of time to respond.
Plaintiff did not oppose.
The facts provided by Defendants were sufficient to show that Plaintiff failed to timely response to Defendants’ properly served RFAs. The RFAs were deemed admitted on June 16, 2022.
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Application for Motion for Summary Judgment – Defendants move for summary judgment based on the aforementioned admissions that were deemed admitted against Plaintiff. Defendant argues that because of these admissions.
The RFAs for Dr. Kohanoff that were deemed admitted are:
REQUEST FOR ADMISSION NO. 1:
Admit that defendant, SHARONA KOHANOFF, DDS, at all times complied with the standard of care in providing dental treatment to plaintiff.
REQUEST FOR ADMISSION NO. 2:
Admit that no act and/or omission of defendant, SHARONA KOHANOFF, DDS, in providing dental treatment to plaintiff was a substantial factor in causing plaintiff any injury.
REQUEST FOR ADMISSION NO. 3:
Admit that plaintiff has not suffered any health care related expenses and/or loss of earnings as a result of care and treatment from defendant, SHARONA KOHANOFF, DDS.
REQUEST FOR ADMISSION NO. 4:
Admit that plaintiff saw no dentists for consultation and/or treatment during the 15 years prior to treatment with defendant, SHARONA KOHANOFF, DDS.
REQUEST FOR ADMISSION NO. 5:
Admit that defendant, SHARONA KOHANOFF, DDS did not treat your upper right first molar also referred to as tooth number 3 at any time.
REQUEST FOR ADMISSION NO. 6:
Admit that defendant, SHARONA KOHANOFF, DDS at no time prior to December 1, 2020, had any ownership interest in the dental office entitled Leoneed Gordon, DDS, Inc. located at 1745 W. Avenue K, Suite C, Lancaster, California 93534.
REQUEST FOR ADMISSION NO. 7:
Admit that defendant, LANCASTER ADVANCED DENTAL, INC. at no time prior to December 1, 2020, had any ownership and/or equity interest in the dental office entitled Leoneed Gordon, DDS, Inc. located at 1745 W. Avenue K, Suite C, Lancaster, California 93534.
REQUEST FOR ADMISSION NO. 8:
Admit that prior to December 1, 2020, defendant, SHARONA KOHANOFF, DDS did not have any ownership interest in the dental practice at which he received dental treatment on and/or before December 1, 2020, and which was located at 1745 West Ave. K, Suite Seek [sic], Lancaster, California 93534.
REQUEST FOR ADMISSION NO. 9:
Admit that the dental office that provided most of your dental treatment prior to December 1, 2020, was located at 1745 West Ave. K, Suite Seek [sic], Lancaster, California 93534 and operated by “Leoneed Gordon, DDS, Inc.”
REQUEST FOR ADMISSION NO. 10:
Admit that the only complaint you have about dental care as alleged in the complaint pertains to treatment you received prior to December 1, 2020, on your upper right first molar also known as tooth number three.
REQUEST FOR ADMISSION NO. 11:
Admit that Leoneed Gordon, DDS, Inc. sold the entire dental practice located at 1745 West Ave, K. Suite Seek [sic], Lancaster, California 93534 to defendant SHARONA KOHANOFF, DDS effective December 1, 2020.
The RFAs for Lancaster Advanced Dental, Inc. that were deemed admitted are:
REQUEST FOR ADMISSION NO. 1:
Admit that defendant, LANCASTER ADVANCED DENTAL INC., through its employees, at all times complied with the standard of care in providing dental treatment to plaintiff.
REQUEST FOR ADMISSION NO. 2:
Admit that no act and/or omission of defendant, LANCASTER ADVANCED DENTAL INC. and its employees, officers, and agents, in providing dental treatment to plaintiff was a substantial factor in causing plaintiff any injury.
REQUEST FOR ADMISSION NO. 3:
Admit that plaintiff has not suffered any health care related expenses and/or loss of earnings as a result of care and treatment from defendant, LANCASTER ADVANCED DENTAL INC.
REQUEST FOR ADMISSION NO. 4:
Admit that plaintiff saw no dentists for consultation and/or treatment during the 15 years prior to treatment with defendant, LANCASTER ADVANCED DENTAL INC.
REQUEST FOR ADMISSION NO. 5:
Admit that all dentists who treated plaintiff at LANCASTER ADVANCED DENTAL INC. were at all times independent contractors of defendant, LANCASTER ADVANCED DENTAL INC., pursuant to written and/or oral independent contractor agreements.
REQUEST FOR ADMISSION NO. 6:
Admit that all LANCASTER ADVANCED DENTAL INC.’s dental staff and/or dental auxiliaries as defined in the Business and Professions Code of the State of California who had contact with plaintiff at LANCASTER ADVANCED DENTAL INC. facility at all times complied with the standard of care in treating plaintiff.
REQUEST FOR ADMISSION NO. 7:
Admit that all administrative office staff of LANCASTER ADVANCED DENTAL INC. was not negligent in the performance of their duties, acts and/or omissions while interacting with plaintiff.
REQUEST FOR ADMISSION NO. 8:
Admit that plaintiff’s health care providers have received no benefits pursuant to the Medicare, Medicaid and SCHIP Extension Act of 2007 (hereinafter referred to as “MMSEA”) for treatment upon plaintiff on or after December 7, 2020.
Defendants present that Plaintiff cannot establish that either of the Defendants breached the standard of care due to the RFAs.
“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “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.¿)¿
Regarding the use of Plaintiff’s admissions for the basis of the Motion for Summary Judgment, “Code of Civil Procedure section 437c expressly provides that admissions, answers to interrogatories and depositions may be used to support a motion for summary judgment. Defendants' failure to answer plaintiffs' requests for admissions is deemed an admission of the factual matters contained therein under Jack v. Wood (1968) 258 Cal.App.2d 639.” (Craig Corp. v. County of Los Angeles (1975) 51 Cal. App. 3d 909, 914; See also Cal. Code Civ. Proc. §437c(b)(1) [“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. . .”].) Further, “[a]dmissions contained in depositions and interrogatories are admissible in evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp. (1975) 48 Cal. App. 3d 376, 380; See also Cal. Evid. Code §1220 [“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity”].)
Plaintiff’s admissions are admissible in a motion for summary judgment and can be used as the basis to establish any material fact. Defendant has proven via Plaintiff’s admissions that Defendant was not negligent. Therefore, Defendants have met their burden by presenting facts to negate an essential element, or to establish a defense. The burden then shifts to Plaintiff to show a triable issue of material fact or defense exists.¿¿
Plaintiff does not present otherwise.
Accordingly, the Motion for Summary Judgment is GRANTED.
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Conclusion
Defendants Sharona Kohanoff, DDS, and Lancaster Advanced Dental, Inc.’s Motion for Summary Judgment is GRANTED.