Case Number: YC068722    Hearing Date: October 20, 2014    Dept: 91

The Motion for Summary Judgment/Adjudication by Defendants, Kerlan-Jobe Orthopedic Clinic and Steven Yoon, M.D., filed on 5/22/14 is DENIED. Defendants have not met their burden of establishing they are entitled to judgment or adjudication of the alleged claims based on the material facts proffered, which are supported by incompetent evidence and are not proved as more specifically described below. Cal Code Civ Procedure § 437c(p)(2).

As a preliminary matter, there is no merit to Plaintiff’s claim that this motion for summary judgment/adjudication is an improper motion for reconsideration of the court’s decision overruling demurrer. At issue in the demurrer was whether or not the claims were adequately alleged. At issue here is whether undisputed material facts exist to warrant adjudication of claims.

The motion for adjudication of the 1st cause of action for medical negligence is DENIED. Defendants “concede that Plaintiff has raised a triable issue of material fact with respect to the medical negligence cause of action. Reply 2:16-17.

Plaintiff’s objections to the Declaration of Dr. Richeimer (Defendants’ expert).

#6, 8. SUSTAIN lacks foundation. Defendant’s expert attempts to establish there is no evidence to support that Defendants breached their fiduciary duty. He has no basis for making this opinion since he is not a legal expert. This is a legal conclusion.

#10, 12 SUSTAIN lacks foundation. Defendants’ expert cannot attest that Defendants did not engage in fraud or fraudulent concealment. He has no basis for making this opinion since he is not a legal expert. This is a legal conclusion. He has no basis for knowing others’ intent for engaging in the alleged content.The remaining objections are OVERRULED.

Defendant’s objections to the Declaration of Brandy Miller, SUSTAIN #1-3 based on hearsay only as to what she was “advised” or what was “recommended.” The remaining objections are OVERRULED. Overrule Objection to the Decl of Dean Zvorak.

As to the 2nd, 3rd and 4th causes of action the motion is DENIED as Defendants have not met their initial burden of showing they are entitled to judgment by simply pointing out “there is no evidence” in the medical records to support that Defendants breached a fiduciary duty, or engaged in fraud or fraudulent concealment. The only evidence in support is Dr. Richeimer’s declaration purporting to establish that he has read the records and found no evidence. See Fact 35.

Where summary judgment is based on absence of evidence as Defendants argue here, Defendants must make an affirmative showing by way of direct or circumstantial evidence “that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995). It is insufficient to argue simply that there is an absence of evidence.

As the burden has not shifted under Cal Code Civ Procedure § 437c(p)(2) Plaintiff is not required to raise triable issues of fact. Notwithstanding, Plaintiff’s expert disputes whether the procedure was indicated and properly performed. See Fact 32 and evidence cited therein by both parties.

Facts 36 and 38 as to whether the procedure was appropriate and medically indicated remains in dispute based on Dr. Lobatz’s declaration, ¶ 7c. To the extent Defendant’s expert attempts to establish that a Breach of Fiduciary Duty did not occur, Plaintiff’s objections thereto were sustained. Objections #6 and #8.

The motion for adjudication of the 3rd and 4th causes of action for fraud negligent misrepresentation, respectively is DENIED for the same reasons. The motion is defective as to these two remaining claims because Defendants have not met their burden of establishing “that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case.” Hagen at 186. Defendants again rely on their experts’ review of the records, and his affirmation that there is no evidence of fraud or fraudulent concealment for a nefarious purpose. There is no personal knowledge or foundation for the expert’s knowledge of anyone’s intent in engaging in the alleged conduct. Plaintiff’s objections thereto are sustainable. Objections #10 and #12. Accordingly Facts 39 and 43, which are material to the fraud claims remain unproved.