Case Name: Maqdoor v. Huynh, et al.
Case No.: 16CV297194

This is a dental malpractice action. According to the allegations of the complaint, plaintiff Belal Maqdoor (“Plaintiff”) sought defendants Tai Huynh, DDS and Newgen Dentistry (collectively, “Defendants”) to surgically extract a tooth on May 14, 2015. (See complaint, ¶ 4.) Defendants negligently examined, diagnosed and treated his number 13 and 14 teeth, and negligently and unskillfully left one of the roots of the extracted tooth in Plaintiff’s gum, proximately causing chronic inflammation and infect of the jaw, and subsequent non-healing chronic periodontitis and osteitis. (See complaint, ¶¶ 5-7.) On July 1, 2016, Plaintiff filed a complaint against Defendants, asserting a single cause of action for dental malpractice. Defendants move for summary judgment.

Defendants’ burden on summary judgment, or summary adjudication

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendants meet their initial burden as to breach

“The elements of a cause of action for medical [or dental] 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.” (Johnson v. Super. Ct. (Rosenthal) (2006) 143 Cal.App.4th 297, 305, citing Hanson v. Grode (1999) 76 Cal.App.4th 601. 606; see also Budd v. Nixen (1971) 6 Cal.3d 195, 200; see also Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)

California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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 the University of California (1989) 215 Cal.App.3d 977, 984-985, quoting Hutchison v. United States (9th Cir. 1988) F.2d 390, 392).)

Defendants assert that Plaintiff cannot prevail on a cause of action for dental malpractice against them because Defendants complied with the standard of care provided to Plaintiff and thus did not breach any duty owed to Plaintiff. (See Defs.’ memorandum of points and authorities in support of motion for summary judgment, pp.7:1-26, 8:1-7.) In support of their motion, Defendants provide the declaration of E. John Baron, D.D.S., a dentist familiar with the standard of care and causation in dentistry, who states, “it is my opinion that Dr. Huynh complied with the standard of care with respect to the treatment he provided to Plaintiff.” (Baron decl., ¶¶ 1-14 (also stating “the care and treatment provided by Dr. Huynh in the extraction of Plaintiff’s tooth was appropriate and consistent with the standard of care”).) Defendants meet their initial burden to demonstrate that Defendants did not breach the standard of care with respect to Plaintiff’s treatment.

In opposition, Plaintiff fails to demonstrates the existence of a triable issue of material fact

In opposition, Plaintiff does not argue that Defendants breached the standard of care. Instead, Plaintiff argues that “[h]ere, the question of fact is whether the Defendant gave Mr. Maqdoor ‘sufficient information’ as to the nature of the extraction, and the imminent possibility of complications still existing, such as the dry socket since he was an occasional smoker, so that he could intelligently decide whether to undergo the dental procedure.” (Pl.’s opposition to motion for summary judgment (“Opposition”), p.4:5-8.) Plaintiff argues that he can assert a cause of action for a lack of informed consent, and presents his own declaration, as well as other evidence regarding the new theory. However, as Defendants argue in reply, “[o]n summary judgment motions, the pleadings always define the issues.” (Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 536; see also Nieto v. Blue Shield of Cal. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (stating that “the pleadings determine the scope of relevant issues on a summary judgment motion”).) Plaintiff may not at this stage raise a new issue not alleged in his complaint. Plaintiff also fails to present a declaration from an expert and thus fails to demonstrate a triable issue of material fact as to Defendants’ alleged breach.

Lastly, Plaintiff requests a continuance, asserting “good cause exist to grant the present application because there are more facts that are essential to the preparation of objection to the summary judgment motion that are to be obtained through the discovery requests that are currently outstanding and the Plaintiff could not have found this evidence earlier because of all the complexity of the litigation and delays that have developed for the last twenty six months from when the case was originally filed.” (Opposition, pp.5:27-28, 6:1-3.) Plaintiff asserts that mediation discussions came to a halt, and Plaintiff deposed the person most qualified for Newgen Dentistry, and that it became apparent that he needs to depose Huynh’s wife, which was difficult due to her maternity leave. (See Opposition, p.6:4-15; see also Kallas decl., ¶ 9.)

However, it is unclear as to how these events justify a continuance as such a deposition would not relate to the Plaintiff’s failure to provide a declaration from an expert who could testify as to Defendants’ purported breach of the standard of care. Plaintiff’s counsel’s declaration does not otherwise suggest that facts essential to opposition may exist but cannot, for any reason, be presented. (See Code Civ. Proc. § 437c, subd. (h).) Accordingly, Plaintiff’s request for continuance pursuant to section 437c, subdivision (h) is DENIED.

As Plaintiff fails to demonstrate the existence of a triable issue of material fact as to Defendants’ breach of the standard of care, Defendants’ motion for summary judgment is GRANTED.

Defendants’ objections are not the basis of the Court’s ruling.

After this signed order has been served on the parties, Defendants shall submit a proposed judgment either approved as to form or with proof of compliance with Rules of Court, Rule 3.1312. The proposed judgment shall specifically identify the defendants by full name, instead of collectively.

The Court shall prepare the Order.