Judge: Steven A. Ellis, Case: 22STCV08773, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV08773    Hearing Date: November 30, 2023    Dept: 29

Tentative

THE COURT WILL HEAR ARGUMENT

THIS IS A PRELIMINARY, PARTIAL TENTATIVE RULING. IT IS NOT A RULING OR COURT ORDER AND SHOULD NOT BE TREATED OR CONSIDERED AS SUCH.

THE COURT HAS QUESTIONS FOR COUNSEL, AS SET FORTH BELOW.

Background

On March 10, 2022, Plaintiff Ilias Farfouris (“Plaintiff”) filed the complaint in this action against Defendants Encino Dental Smile, Faraz Farahnik, and Does 1 through 20, asserting claims for (1) dental malpractice; (2) medical battery/lack of informed consent; and (3) negligent misrepresentation. On June 1, 2022, Defendant Faraz Farahnik filed an answer.

On June 21, 2022, the Court entered a stipulated order that (among other things) dismissed the claims against Encino Dental Smile in their entirety with prejudice.

On May 25, 2023, Defendants Faraz Farahnik and Encino Dental Smile (“Defendants”) filed this motion for summary judgment or, in the alternative, for summary adjudication, along with supporting evidence and a request for judicial notice. On October 12, Plaintiff filed an opposition, supporting evidence, and objections to Defendants’ evidence and request for judicial notice. On October 20, Defendants filed a reply, objections to Plaintiffs’ evidence, and an additional request for judicial notice.

The hearing was initially set for October 27 and was continued, on the Court’s own motion, to November 30.

Legal Standard

“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.) Code of Civil Procedure section 437c, subdivision (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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)

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.)

Request for Judicial Notice

With their moving papers, Defendants request that the Court take judicial notice of two documents: (1) Exhibit E, a September 14, 2021 letter titled “Settlement Communication” from Plaintiff’s counsel to Defendants; and (2) Exhibit F, a , attached as Exhibit E; and (2) a October 14, 2021 letter titled “Notice of Intent to File Action for Professional Negligence” from Plaintiff’s counsel to Defendants.

With their reply papers, Defendants request that the Court take judicial notice of two additional documents: (1) Exhibit G, described as a “letter of representation” dated August 16, 2021, sent by Plaintiff’s counsel, Sassan Masserat to Defendants; and (2) Exhibit H, a letter described as “notice of preservation of evidence” dated August 16, 2021, sent by Plaintiff’s counsel to Defendants.

Plaintiff objects.

Plaintiff’s objections are SUSTAINED. These letters are not “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).) In addition, Exhibits G and H are new evidence submitted with the reply papers, which is not proper on a motion for summary judgment or summary adjudication. Accordingly, the Court DENIES Defendants’ request to take judicial notice of Exhibits E, F, G, and H.

Evidentiary Objections

Each party objects to some of the evidence presented by the other. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)

Plaintiff’s Objections Nos. 1-15 to the Declaration of Edmond R. Hewlett, D.D.S., are OVERRULED. Among other things, Dr. Hewlett has appropriate credentials and his testimony relates to a subject that is sufficiently beyond common experience that the opinion of an expert witness would assist the trier of act; is based on information of the type on which an expert may reasonably rely; is based on reasons supported by the information on which the expert relies; and is not speculative (Evid. Code, §§ 801-02; Sargon Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.).

The Court does not understand Plaintiff’s Objection No. 16 to the Declaration of Dr. Hewlett. Plaintiff states that he is objecting to Exhibits “Nos. A through I,” but Dr. Hewlett’s declaration has no exhibits.

Plaintiff’s Objections Nos. 1 and 2 to the Declaration of Shireen Ashtari are OVERRULED.

(The Court notes that the same Exhibits E and F are at issue in Defendants’ Request for Judicial Notice and the Declaration of Ms. Ashtari. To be clear, the Court is not taking judicial notice of Exhibits E and F, but Exhibit E and F are in evidence for purposes of this motion through the Declaration of Ms. Ashtari.)

Defendants’ Objections Nos. 1-14 to the Declaration of Edmond M. Tash, DDS, are OVERRULED. Among other things, Dr. Tash has appropriate credentials and his testimony relates to a subject that is sufficiently beyond common experience that the opinion of an expert witness would assist the trier of act; is based on information of the type on which an expert may reasonably rely; is based on reasons supported by the information on which the expert relies; and is not speculative (Evid. Code, §§ 801-02; Sargon Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.).

Defendants’ Objections Nos. 15, 17, 18, and 22-26, to the Declaration of Ilias Farfouris are OVERRULED.

Defendants’ Objection No. 16 to the Declaration of Mr. Farfouris is SUSTAINED in PART, as to the phrase “and as a result I now have gaps in my mouth,” and is otherwise OVERRULED.

Defendants’ Objections Nos. 19, 20, 21, and 27 to the Declaration of Mr. Farfouris are SUSTAINED.

Defendants’ Objections Nos. 28-29 to the Declaration of Sassan Masserat are SUSTAINED.

Discussion

Statute of Limitations – All Causes of Action

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.)

Defendants argue that all three causes of action are barred by the statute of limitations.

The one-year portion of the statute of limitations begins to run when the plaintiff became aware, or reasonably should have become aware, of both the physical manifestation of the injury and its tortious cause. (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 291-292.) The plaintiff discovers the cause of action when he at least suspects that someone has done something wrong to him. He has reason to suspect when he has “notice or information of circumstances to put a reasonable person on inquiry.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398.)

Defendants contend that Plaintiff either did or must have suspected wrongdoing on December 24, 2020, when Plaintiff returned to Dr. Farahnik for an emergency visit. (Defendants’ Statement of Undisputed Material Facts [“DSUMF”] Nos. 13-14.) But Plaintiff testified that he took Dr. Farahnik’s reassurances into account and he did not become suspicious of wrongdoing until the summer of 2021, less than one year before suit was filed. (Exh. C, Plaintiff’s Depo., at p. 144:3-13].)

Does this testimony of Plaintiff create a triable issue as to when he discovered, or should have discovered, the allegedly tortious cause of his injury?

First Cause of Action: Dental Malpractice

In a medical negligence action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.  [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) 

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, 984-85.) 

Assuming that Dr. Hewlett’s declaration satisfies Defendant’s initial burden of showing that Defendants were not negligent and did not cause Plaintiff’s injuries, does Dr. Tash’s declaration nonetheless establish triable issues as to breach of the duty of care and causation?

Second Cause of Action for Lack of Informed Consent

It is unclear to the Court whether this is a claim for battery (as stated in the caption of the complaint) or for professional negligence (as is suggested by the allegations in the body of the complaint).

The elements of a cause of action for a failure to obtain informed consent are: (1) the defendant performed a medical procedure on a patient, (2) the patient did not give informed consent for the procedure, (3) a reasonable person in the patient’s position would not have given informed consent, and (4) the patient was harmed by either a risk that should have been explained or a breach of the standard of care. (Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133-1139.)

When recommending treatment, the physician must disclose all material information necessary to make an informed decision, including an explanation of the procedure, likelihood of success, risk if the patient accepts or rejects the suggested treatment, and any other information a skilled practitioner in good standing would disclose under similar circumstances. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343.)

Plaintiff alleges in the Complaint that Defendants failed to disclose the inherent risks involved in performing said procedures involving dental structures, and negligently failed to obtain Plaintiff’s informed consent for shaving off several teeth. (Compl. ¶ 30.)

Assuming that Defendants have met their initial burden of showing that Defendant disclosed the inherent risks involved, and that Plaintiff appropriately consented to the procedures, does Plaintiff’s evidence (including Farfouris Decl., ¶¶ 6-7, 9-10 and Tash Decl., ¶¶ 16-19) nonetheless establish triable issues as to informed consent?   

Third Cause of Action: Negligent Misrepresentation

The elements of a claim for negligent misrepresentation are a misrepresentation of fact, lack of reasonable grounds, a duty to plaintiff, intent to induce reliance, reliance, causation and harm. (Majd v. Bank of America, N.A. (2015) 243 CA4th 1293, 1307.)

Plaintiff alleges omissions. (E.g., Opp. p.22:19-21.) The law, however, appears to be that negligent misrepresentation requires a positive assertion, not merely an omission or implied representation, even if there is a fiduciary relationship between the parties. (See Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 596.)

Under the applicable authorities, have Defendants shown that Plaintiff cannot show an essential element of his negligent misrepresentation claim (an affirmative assertion)?

Conclusion