Case Number: BC675776 Hearing Date: March 19, 2019 Dept: 2

Motion by Defendants, David M. Alessi, M.D. and David M. Alessi, M.D. dba Alessi Institute, for Summary Judgment or alternatively, for Summary Adjudication, filed on 12/21/18, is GRANTED. Defendants have met their burden of establishing that they are entitled to judgment on the entire complaint based on the undisputed material facts proffered. Cal. Code Civil Procedure 437c(p)(2).

The undisputed facts establish the following: Plaintiff presented to Dr. Alessi’s office on 8/30/16, complaining of glabellar lines, crow’s feet, and forehead lines and wrinkles. UF 1. Defendant treated Plaintiff with Botox at that visit and two subsequent visits on 3/14/17 and 4/4/17. UF 3-5.

On 5/24/17, Plaintiff underwent IPL photo-rejuvenation using a M22 Lumenis laser to address dark spots on her face. UF 7. On 5/25/17, Plaintiff texted and reported she had developed some blistering overnight in several areas. UF 16. Plaintiff suffered chills, did not feel well, and her eyes and nose were more swollen. She inquired whether she should go to the emergency room. UF 18. She informed Defendant by text that she was seeking treatment at University of San Diego Medical Center. UF 20.

The First Amended Complaint alleges that Defendants were negligent in performing cosmetic face and skin procedures on Plaintiff beginning May of 2017. Motion, Exhibit A. Plaintiff alleges claims Defendants, Dr. David Alessi and Alessi Institute, for:

1. Negligence

2. Professional negligence

3. Intentional infliction of emotional distress.

Alessi Institute’s liability is alleged to be dependent upon Dr. Alessi’s liability. UF 25.

To support a claim for medical malpractice, 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.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

Whether the negligent conduct caused Plaintiff’s injury within a reasonable medical probability must be proven by competent expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.

Objections

Plaintiff did not file separate written objections to Defendant’s evidence as required by Cal Rules of Court Rule 3.1354.

Defendant’s objections to the declaration of Dr. William F. Groff (Plaintiff’s expert).

#1. Plaintiff’s Exhibit A (photographs of Plaintiff). SUSTAIN. Lacks authentication or foundation.

#2-6. Declaration of Dr. Groff (Plaintiff’s expert) Paragraph 5. SUSTAIN. Conclusory, lacks foundation. The acts falling below the standard of care are described at ¶ 5 – failure to stop the procedure, failure to provide the risks of procedure in writing and obtaining Plaintiff’s confirmation that she understood everything. However, the opinion is conclusory and lacks foundation. Dr. Groff does not identify what documents he considered in support of his opinion, such as medical records or depositions that would describe the Defendant’s conduct. He states only that he examined the Plaintiff. Groff declaration ¶ 3. He states he is familiar with her medical history, but does not provide foundation for that. Id.

Dr. Groff’s ultimate opinions on the issue of standard of care and causation are conclusory. Id, ¶¶ 5 -8. There must be “reasoned explanation” for why the underlying facts lead to the ultimate conclusion. Johnson v. Superior Court (2006) 143 Cal. App. 4th 297, 308; Kelley v. Trunk (1998) 66 Cal.App.4th 519.”

As stated previously, there is no foundation for the asserted “facts” that Plaintiff screamed, what occurred at the time of the laser treatment, or whether Plaintiff provided written informed consent of the risks.

The opinion is speculative. Dr. Groff states that “if [Dr. Alessi] provided the topical it was not sufficient since the burns on her face were so severe.” Groff declaration ¶ 7. Speculation or conjecture is insufficient to create a triable issue. Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.
The Court can disregard statements in opposition to a motion for summary judgment which are incompetent as evidence. Hoover Community Hotel Corp. v. Thompson (1985) 167 Cal.App.3d 1130, 1136-1137.

Declarations of Maura Tuso (Plaintiff) and Taylor Marks, (Plaintiff’s counsel), were not material to the disposition of the motion, which is based on the issues of standard of care and causation and lack of outrageous conduct on Defendants’ part. Neither Plaintiff nor her counsel are medical experts.

Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review.Cal. Code Civ. Proc. § 437c(q).

As the declaration of Dr. Groff is incompetent as evidence, Defendants’ material facts on the standard of care and causation are without dispute. UF 21, 22, 23, 26, 27, 33, 41, 42.

The declaration of Plaintiff’s counsel asserts that Plaintiff has not been able to take the deposition of Gennady Rubenstein, M.D. Marks declaration, ¶ 8.

This is not relevant to the disposition of the motion. Plaintiff is not asking for a continuance to take Dr. Rubenstein’s deposition. Regardless, the issue is the insufficiency of Plaintiff’s expert’s declaration, as described above.

There is no dispute that there is no evidence of outrageous conduct on the part of Defendant.

A claim for intentional infliction of emotional distress requires proof of the following elements.

Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing emotional distress

Plaintiff suffered severe or extreme emotional distress

Actual and proximate causation. Christensen v. Superior Court, (1991) 54 Cal.3d 868, 903.

Behavior is extreme and outrageous conduct if the conduct:

abuses a relation or position which gives him power to damage the plaintiff’s interest;

Defendant knows the plaintiff is susceptible to injuries through mental distress; or

Defendant acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.

Furthermore, conduct is “extreme and outrageous” if it arises to “most extremely offensive” and “exceeding all bounds usually tolerated by a decent society.” The requirements of the rule are “rigorous and difficult to satisfy.” Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128–29

Plaintiff relies on the declaration of Dr. Groff to dispute Defendants’ material facts. The declaration is incompetent as evidence for the reasons discussed above. Therefore, Facts 37-44 are undisputed.

Moving party is ordered to give notice.