Judge William A. Crowfoot, Case Number: 22STCV13792, Date: 2023-09-25 Tentative Ruling

Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-09-25 Tentative Ruling

On April 26, 2022, plaintiff Rosevianney C. Ogumsi (“Plaintiff”) filed this medical malpractice action against defendants Richard Dale Gentile, D.D.S. (“Dr. Gentile”), Heydar Hamid Shahrokh, D.D.S. (“Dr. Shahrokh”), and Heydar Shahrokh, D.D.S., Inc. dba Comfort Dental Center (“Comfort Dental Center”). On July 5, 2022, Plaintiff filed a First Amended Complaint (“FAC”). On September 26, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”).

On November 7, 2023, Dr. Shahrokh and Comfort Dental Center (collectively referred to as “Defendants”) filed this motion for summary judgment or, in the alternative, summary adjudication of Plaintiff’s causes of action for professional negligence, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and violation of Business and Professions Code section 17200 et seq. (“UCL”).

The motion was originally scheduled to be heard on January 26, 2024, but continued to April 5, 2024, at Plaintiff’s request due to her reported travel schedule.

On March 18, 2024, Plaintiff filed an ex parte application requesting a continuance of 120 days and scheduled the application to be heard on the same day as Defendants’ motion for summary judgment. This order addresses the summary judgment motion as well as Plaintiff’s ex parte application.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.

A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“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).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Plaintiff alleges that she sought dental care from Defendants in early 2021. As background, on or about March 2020, Dr. Gentile allegedly performed a root canal in a negligent manner and left broken file pieces in her teeth, causing nerve damage. (SAC, ¶¶ 18, 23.) Plaintiff sought care from non-parties Canam Dental and Pure Cypress Dentist and was informed the broken file pieces must be removed by a specialiast in order to complete the root canal. (SAC, ¶¶ 18, 20.) Plaintiff was referred to Defendants for the removal and root canal. In early 2021, Dr. Shahrokh began one of three sessions of root canal work. (SAC, ¶ 23.) After the third session, Dr. Shahrokh placed a temporary crown and gave Plaintiff an appointment for installing a permanent crown. (SAC, ¶ 23.) Plaintiff alleges that Dr. Shahrokh refused to install the permanent crown when she arrived for the appointment and instead insisted that she return to co-defendant Dr. Gentile for treatment, which Plaintiff did not want to do. (Ibid.) Plaintiff requested a copy of her dental records and alleges that Dr. Shahrokh refused to give her a copy and instead demanded that she put a request in writing. (Ibid.) When Plaintiff provided a written request, Defendants still refused to release her records and instead informed her that they had sent it to Dr. Gentile. (Ibid.)

On June 28, 2021, Plaintiff went back to Defendants to inform them that Dr. Gentile stated he had not received her dental records. (SAC, ¶ 26.) Plaintiff was asked to have a seat; she waited for 3 hours from 11:00 a.m. to 1:00 p.m. without being assisted and decided to leave. (Ibid.)

A week later, Plaintiff again requested her records from Defendants and waited for an hour while Dr. Shahrokh was on break. (SAC, ¶ 27.) Dr. Shahrokh returned from his break and ordered Plaintiff to leave his office immediately or he would call the police. (Ibid.)

On August 12, 2021, Plaintiff went to Comfort Dental with a written request for her dental records so that she could be treated by a different doctor at non-party Canam Dental but was allegedly denied. (SAC, ¶ 28.) She visited again on August 27, 2021, and Dr. Shahrokh called the police and reported Plaintiff for trespassing. (SAC, ¶ 29.) The police instructed Defendants to release Plaintiff’s dental records but Defendants refused. (Ibid.) Plaintiff claims that due to Defendants’ refusal to provide her with her dental records, she was unable to seek treatment from other dentists and as a result of “the delay in treating Plaintiff's teeth, or lack of treatment of Plaintiff’s teeth, Plaintiff's [sic] suffered infection, pain and severe mental anguish.” (SAC, ¶ 30.)

In a medical malpractice 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.)

As an initial matter, Defendants first argue that Plaintiff cannot prevail on any of her claims due to the matters deemed admitted as a result of her failure to respond to Defendants’ Requests for Admission (Set One). “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Requests for admissions “differs fundamentally from the other five discovery tools (depositions, interrogatories, inspection demands, medical examinations, and expert witness exchanges) . . . [because] admission requests seek to eliminate the need for proof: ‘The purpose of the admissions procedure . . . is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.’ Sometimes, the admissions obtained will even leave the party making them vulnerable to summary judgment.” [Citations.]

Defendants propounded Requests for Admissions (Set Two) to Plaintiff on April 24, 2023. (Conley Decl., Ex. AA.) The requests asked Plaintiff to admit that Defendants did not cause any injury to her while treating her and complied with the standard of care. Plaintiff also was asked to admit that she did not suffer any damages or injuries. (Ibid.) On June 26, 2023, Defendants moved to deem these matters admitted. (Conley Decl., Ex. BB.) The Court granted their motions on September 25, 2023.

Based on these deemed admissions, Defendants have shown that Plaintiff cannot establish a breach of the applicable standard of care or that Defendants’ breach caused her to sustain any injury or damages.

Plaintiff did not oppose the motion and instead on March 18, 2024 filed an ex parte application requesting an extension of time to file an opposition. Plaintiff refers to Code of Civil Procedure section 437c(h) in a footnote and argues that she is unable to provide an adequate response to Defendants’ motion due to its size beause she has “recently returned from a overseas trip that took her to Africa for the last 3 months.” (Ex Parte App., p. 3.) However, Code of Civil Procedure section 437(h) requires a court to deny a summary judgment motion or continue it only if an opposing party states in an affidavit submitted in oppoisition to a motion for summary judgment or summary adjudication (or in a timely filed ex parte application) that “facts essential to justify opposition may exist but cannot, for reasons stated, be presented.” (Code Civ. Proc., § 437c, subd. (h).) The continuance is intended to permit the opposing party to obtain the required affidavits or conduct discovery to present evidence which would raise a triable issue of fact. (Ibid.)

Here, Plaintiff did not – and cannot – identify facts that would justify any opposition to Defendants’ motion. As stated above, Defendants’ motion is premised on facts which have been deemed admitted. Plaintiff did not file a motion pursuant to Code of Civil Procedure section 2033.300(a) after the Court granted Defendants’ motion to deem the matters within their Request for Admissions (Set Two) admitted on September 25, 2023, even though she had ample time to do so. Therefore, as a mattter of law, no facts could exist that would be sufficient to oppose Defendants’ motion because “matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contrary evidence. [Citation.]” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.) Accordingly, Plaintiff’s ex parte application for a continuance is denied and Defendants’ motion with respect to the First Cause of Action is GRANTED..

Claims for intentional and negligent infliction of emotional distress require a plaintiff to prove that they suffered “severe” or “serious” emotional distress. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Plaintiff was asked to admit that Defendants did not engage in any conduct, including extreme and outrageous conduct, with intent or reckless disregard for the probability of causing her emotional distress, which caused her to suffer emotional distress. Plaintiff was also asked to admit that she failed to suffer any mental or emotional distress. Due to the Court’s order deeming these requests admitted, Defendants have met their burden to show that no triable issue of fact exists regarding Defendants’ conduct or Plaintiff’s damages and Plaintiff cannot contradict these facts with additional evidence. Therefore, Defendants’ motion is GRANTED with respect to the Second and Third Causes of Action.

D. Fourth Cause of Action for Unlawful, Unfair and/or Fraudulent Business Practices

For her Fourth Cause of Action, Plaintiff alleges that Defendants engaged in “fraud and financial misrepresentations” and violated Business and Professions Code section 1684.1 by refusing to provide her dental records within 15 days of presenting a release. (SAC, ¶¶ 65, 69-70.)

Defendants argue that summary judgment is appropriate because their requests for admission asked Plaintiff to admit that Defendants did not commit any fraud against Plaintiff and that Plaintiff did not suffer any injury, harm, damage. Defendants additionally requested that Plaintiff admit she is not presently suffering from any symptoms as a result of the conduct underlying this action and that Defendants timely provided the records to Plaintiff as requested. Based on the deemed admissions, Defendants have shown no triable issue exists with respect to any unlawful, unfair, or fraudulent business practices and Plaintiff cannot submit evidence to the contrary. Defendants’ motion is GRANTED with respect to the Fourth Cause of Action.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at AHLDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.