Case Number: BC472302 Hearing Date: June 24, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

HAYLEY OCTAVIA,
Plaintiff(s),
vs.

DENNIS SMILER, D.D.S., et al.
Defendant(s).

Case No.: BC472302

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #27
June 24, 2014

Defendant, Dennis Smiler, D.D.S., M.Sc.D.’s Motion for Summary Judgment is Granted.

1. Background Facts
Plaintiff, Hayley Octavia filed this action against Defendant, Dennis Smiler, D.D.S. for damages arising out of a dental procedure. Plaintiff’s operative complaint is her Fourth Amended Complaint, and it includes causes of action for dental malpractice, battery, and fraud. The causes of action for battery and fraud have been the subject of numerous prior demurrers, all of which have been sustained with leave to amend, ultimately leading to the filing of the Fourth Amended Complaint. Notably, while the case bears a BC case number, it was transferred to the Northwest District in its early stages, and the majority of the law and motion hearings in the case have taken place before the Honorable James Kaddo in Department I of the Van Nuys Courthouse; with the opening of the Personal Injury hub court, the case was recently transferred back downtown.

2. Motion for Summary Judgment
Defendant, Deniis Smiler moves for summary judgment. Defendant supports his motion with the expert declaration of Mary Delsol, D.D.S. Dr. Delsol sets forth her expert credentials, states what records she reviewed, details Defendant’s care and treatment of Plaintiff, and ultimately concludes that Defendant’s care and treatment of Plaintiff complied with the standard of care and did not cause or contribute to Plaintiff’s claimed injuries.

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘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.App.3d 977, 984-985.)

The Expert Declaration of Dr. Delsol is sufficient to meet Defendant’s moving burden to establish he is entitled to judgment as a matter of law. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard. Any opposition to the motion was due on or before 6/10/14. As of 6/19/14, the Court has not received any opposition to the motion. Plaintiff therefore necessarily failed to meet his burden, and the motion is granted.

Dated this 24th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court