Case Number: MC022515    Hearing Date: September 16, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARIA HAMILTON, )
) Case Number MC022515
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
OLYMPIC ORTHOPEDIC AND SPORTS ) September 16, 2014
MEDICINE GROUP, et al., ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

Defendant John Kayvanfar, M.D., Inc. dba Olympic Orthopedic & Sports Medicine Group’s motion for summary judgment came on for hearing on September 16, 2014. Plaintiff Maria Hamilton appeared through her counsel of record, ______________________. Defendant John Kayvanfar, M.D., Inc. appeared through its counsel of record, _______________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

Defendant’s motion for summary judgment is DENIED without prejudice.

SO ORDERED this the _____ day of September, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARIA HAMILTON, )
) Case Number MC022515
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
OLYMPIC ORTHOPEDIC AND SPORTS ) September 16, 2014
MEDICINE GROUP, et al., ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. This case arises from the alleged medical malpractice of Defendant John Kayvanfar, dba Olympic Orthopedic & Sports Medicine Group (“Defendant”). Plaintiff Maria Hamilton, on February 4, 2010, was operated on by Defendant John Kayvanfar, M.D., dba Olympic Orthopedic and Sports Medicine Group (“Defendant”).

2. The procedure involved a right shoulder diagnostic scope, evaluation under anesthesia, Bankart repair, superior labrum anterior posterior repair, and cuff repair. Defendant’s Exhibit G. After the surgery, Plaintiff continued to experience pain, ultimately leading to a second operation by Dr. Conwisar in June of 2012. This led to the discovery of a massive unrepairable rotator cuff tear.

3. Plaintiff filed suit on April 20, 2011, alleging a cause of action for negligence. Defendant filed his answer on May 21, 2011.

4. By order dated November 15, 2012, the case was, except for discovery, stayed pending the outcome of the related worker’s compensation case. By order dated June 18, 2014, the Court vacated the stay and set trial for February 20, 2015.

5. Defendant filed his motion for summary judgment on June 20, 2014, contending through expert declaration that there is no triable issue of material fact and that Defendant met the appropriate standard of care. On July 15, 2014, Plaintiff noticed the deposition of Defendant’s expert, Doctor Nitin A. Shah to be held on August 15, 2014. Dr. Shah apparently failed to appear for his deposition without any reason, excuse, or forewarning.

6. Standard for summary judgment or summary adjudication – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Cal. Code Civ. Proc. § 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code Civ. Proc. § 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

7. “For purposes of motions for summary judgment and summary adjudication: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing 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 that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere 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 that cause of action or a defense thereto.” CCP § 437c(p)(1).

8. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

9. CCP §437c(h) – Code of Civil Procedure §437c(h) establishes that where “facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion or order a continuance to permit affidavits to be obtained or discovery to be had.” “Courts have construed this to mean that when the party seeking the continuance must show the court that the proposed discovery ‘would have led to facts essential to justify opposition.’” St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1539 (citing Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 326). In deciding such a motion, the trial court is “virtually mandated ‘upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition . . . that such continuances are to be liberally granted.’” Knapp v. Doherty (2004) 123 Cal.App.4th 76, 101 (citing Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395) (internal citations omitted).

10. The present case is one sounding in medical malpractice. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. The standard of care . . . is a matter peculiarly within the knowledge of experts.” Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983-84 (internal citations omitted). Because of the importance of expert witnesses in such cases, the Court has discretion to permit earlier depositions of expert witnesses whose opinions are filed in support of or in opposition to a motion for summary judgment. See St. Mary Medical Center, supra, 50 Cal.App.4th at 1539.

11. Under Code of Civil Procedure §2034.300, the Court is required to exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to make that expert available for a deposition. CCP §2034.300(d). As attested to by Plaintiff here, Dr. Shah has, despite what appears to be proper service of notice, failed to appear at his deposition. His expert opinion is what Defendant relies upon here to establish that there are no triable issues of material fact in the case.

12. A moving party, on summary judgment, has the burden of establishing all elements necessary to sustain a judgment in his favor, including issues as to which the non-moving party has the burden of proof. See Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172. Moreover, “affidavits of the moving party are strictly construed.” Orsetti v. City of Fremont (1978) 80 Cal.App.3d 961, 966. Finally, a party that selects an expert witness “must bear [the] adverse consequences which flow from his failure to comply with the requirements of the legal process.” Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 288.

13. The failure of Dr. Shah to attend Plaintiff’s noticed deposition, without any reason or explanation justifying such absence, suggests that his opinion should be excluded under CCP §2034.300(d). At a minimum, this should hold true on the summary judgment motion wherein Plaintiff is entitled to depose the expert witness relied upon by Defendant. Excluding Dr. Shah’s declaration, Defendant has not produced sufficient evidence to demonstrate that it is entitled to summary judgment as a matter of law.

14. As to Plaintiff’s request for sanctions, Plaintiff points to no statutory provision or law which suggests that an unsuccessful motion for summary judgment entitles the prevailing party to an award of monetary sanction. Plaintiff also provides no legal basis for her request for sanctions for Dr. Shah’s failure to appear at his deposition. While it is true that CCP §2025.450 mandates the imposition of sanctions for the failure of a deponent to appear for deposition, such sanctions requires a motion to compel the deponent’s attendance, supported by a meet and confer declaration under §2025.450(b)(2). As such, Plaintiff has provided no grounds upon which sanctions are appropriate.

15. In light of the forgoing, Defendant’s motion for summary judgment is DENIED without prejudice.

SO ORDERED AND ADJUDGED this the ______ day of September, 2014.

___________________________________
RANDOLPH A. ROGERS, JUDGE