Case Number: EC056720 Hearing Date: August 02, 2019 Dept: A

Samara v Nahigian

Motion for Summary Judgment

Calendar:

8

Case No.:

EC056720

Hearing Date:

August 02, 2019

Action Filed:

September 06, 2011

Trial Date:

September 10, 2019

MP:

Defendant Haitham Matar, D.D.S.

RP:

Plaintiff Rana Samara

ALLEGATIONS:

The instant action arises out of a personal injury allegedly suffered by Plaintiff Rana Samara (“Plaintiff”) through the alleged professional negligence of Defendant Stephen Nahigian, D.D.S. (“Nahigian”). Plaintiff additionally alleges that Defendant Haitham Matar, D.D.S. (“Matar”) is liable for Nahigian’s acts.

Plaintiff filed her Complaint on September 06, 2011, her First Amended Complaint on November 30, 2011, and operative Second Amended Complaint (“SAC”) on April 02, 2019. In the SAC, Plaintiff alleges a single cause of action sounding in professional negligence.

PRESENTATION:

The Court granted summary judgment in favor of Nahigian on January 02, 2013, following the motion being heard on October 12, 2012. In granting judgment in favor of Nahigian, the Court held that the statute of limitations barred the action and that Nahigian and that Plaintiff was unable to establish the element of causation. During the same hearing, the Court determined that Matar could not establish that the cause of action was barred on the grounds of statute of limitations as to him, due to Plaintiff filing an intent to sue letter extending the deadline by 90 days. Additionally, the Court determined on that motion that Matar had failed to establish a right to judgment on his own provision of dental care to Plaintiff.

Plaintiff appealed the Court’s decision as to Nahigian, and on November 10, 2014, the Second Appellate District affirmed the Court’s determination on the grounds that the statute of limitations barred the action against Nahigian. Matar thereafter filed a second motion for summary judgment, which was heard on May 01, 2015, and granted on July 09, 2015. In the Court’s determination on the second motion for summary judgment, it held that the entry of judgment against Nahigian vitiated the ‘negligent co-venturer’ theory ascribed to Matar on the grounds of res judicata. Plaintiff thereafter appealed the Court’s decision, and on August 02, 2018, the California Supreme Court reversed judgment in favor of Matar by overruling the 150-year-old precedent of People v. Skidmore (1865) 27 Cal. 287, and determining that res judicata did not apply under the circumstances.

The action returned to this Court, and on May 14, 2019, Matar filed this current motion for summary judgment in this action. Plaintiff opposed the motion on July 19, 2019.

RELIEF REQUESTED:

Defendant Haitham Matar, D.D.S. moves for entry of judgment on the sole cause of action for professional negligence.

DISCUSSION:

Standard of Review – 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. 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 Matarial fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“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 Matarial 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 Matarial fact exists but, instead, shall set forth the specific facts showing that a triable issue of Matarial fact exists as to that cause of action or a defense thereto.” Code Civ. Proc. §437c(p)(1).

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 Matarial 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 Matarial fact, “‘[a]ll doubts as to whether any Matarial, 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.

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Joint Venturer/Agency Liability – The first grounds upon which Matar moves for adjudication is that he is not liable for the negligent acts of Nahigian because Nahigian and Matar were not engaged in a joint venture. Under Corp. Code §16202, a partnership is formed when any “two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Corp. Code §16202(a). A prima facie case for the formation of a partnership occurs when a person “receives a share of the profits of a business”. Corp. Code §16202(c).

Additional factors that a court must consider prior to finding the existence of a partnership include (1) the capital contributions of the putative partners, (see Mercado v. Hoefler (1961) 190 Cal. App. 2d 12, 17 [holding that the contribution of labor by one putative partner and capital by another does not preclude the formation of a partnership]), (2) the community of interests between the putative partners and the business, (see Moulin v. Der Zakarian (1961) 191 Cal. App. 2d 184, 189 [there should exist a community of interests such “as empowers each party to make contracts, incur liabilities, manage the whole business”]), (3) joint ownership or liability in the putative partnership, (see Stilwell v. Trutanich (1960) 178 Cal. App. 2d 614, 618 [joint ownership may exist even when legal title to the property at issue is in the name of only one of the putative partners]), (4) the management and control of the business, (see Billups v. Tiernan (1970) 11 Cal. App. 3d 372, 379 [holding that some degree of participation in the management or control of the business is one of the elements of finding the existence of a partnership]), and (5) the sharing of losses and profits (see Holmes v. Lerner (1999) 74 Cal. App. 4th 442).

Ultimately, “[t]he existence and scope of the partnership are facts to be determined by the trial court.” Vineland Homes, Inc. v. Barish (1956) 138 Cal. App. 2d 747, 755. The fact finder must determine the existence of the putative partnership by a preponderance of the evidence. Weiner v. Fleischman (1991) 54 Cal. 3d 476, 490 (“[N]othing in our constitutional, statutory or case law requires a departure from the ordinary civil standard of preponderance of the evidence when a party seeks to establish the existence and scope of an oral joint venture or partnership agreement.”).

Regarding the issue of agency, “[a]n employee is an individual who performs services subject to the right of the employer to control both what shall be done and how it shall be done and an employer is a person for whom an individual performs services as an employee.” Weisman v. Blue Shield of California (1984) 163 Cal. App. 3d 61, 67. “[T]he right to control job performance is the primary factor in determining any employment relationship.” State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal. 4th 1002, 1012. “An agent is one who represents another, called the principal, in dealings with third persons.” Cal. Civ. Code §2295. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Huong Que, Inc. v. Luu (2007) 150 Cal. App. 4th 400, 410-11. “An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent.” Van’t Rood v. County of Santa Clara (2003) 113 Cal. App. 4th 549, 572.

On review of the evidence presented by the parties, the Court concludes that there exists a material dispute as to whether Nahigian and Matar were join venturers, and whether Nahigian was Matar’s agent. Specifically, there is evidence that Matar and Nahigian exerted joint control over (1) shared office space (Plaintiff’s Ex. E, 24:15-25), (2) prescription fulfillment software (Plaintiff’s Ex. E, 30:31-33:10), and (3) x-ray machinery (Plaintiff’s Ex. E, 23:7-23; Plaintiff’s Ex. D, 23:15-26:2); there is additional evidence that Matar exclusively controlled the price of procedures and payments remitted to Nahigian (Plaintiff’s Ex. E, 13:1-14:12). These facts are sufficient to create triable issues as to whether Matar and Nahigian were joint-venturers or whether Nahigian was the agent of Matar.

Accordingly, the Court will not grant judgment on this basis.

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First Cause of Action (Professional Malpractice) – In any medical malpractice action, the plaintiff must establish: (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. Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2.

In the remainder of his motion, Matar argues that neither he nor Nahigian breached the applicable standard of care nor caused the injury to Plaintiff through their acts or omissions. As both the issue of the requisite standard of care and causation require expert witness testimony, the Court has reviewed the expert witness declarations of Matar, in the Declaration of William C. Ardary, M.D., D.D.S, and of Plaintiff, in the Declaration of Gregory Doumanian, D.D.S. Pursuant to the Court’s review, the Court determines that Matar has failed to establish a prima facie right to relief, as the expert declaration fails to inform the Court what the requisite standard of care is under the facts of this case. As stated by the Supreme Court of California:

Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter … that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.

In Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558, 563 [10 Cal. Rptr. 3d 34], the plaintiffs argued that under Evidence Code section 801, subdivision (b), “a court should determine only whether the type of matter that an expert relies on in forming his or her opinion is the type of matter that an expert reasonably can rely on in forming an opinion, without regard to whether the matter relied on reasonably does support the particular opinion offered.” The Court of Appeal disagreed. “An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” (Lockheed Litigation Cases, supra, at p. 564, 10 Cal. Rptr. 3d 34.)

….

Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony. [Emphasis added].

See, Sargon Enterprises, Inc. v. Univ. of S. California (2012) 55 Cal. 4th 747, 769–70.

As further stated by the Court:

…“[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.” (Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510, 11 Cal. Rptr. 3d 653 (Bushling ).) “However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” [Emphasis added] (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117, 8 Cal. Rptr. 3d 363 (Jennings ).) “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1117–1118, 8 Cal. Rptr. 3d 363.) Regarding causation, “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” [Emphasis added] (Id. at p. 1118, 8 Cal. Rptr. 3d 363.)

These rules apply to expert witness declarations submitted in connection with a motion for summary judgment. (Powell, supra, 151 Cal. App. 4th at p. 123, 59 Cal. Rptr. 3d 618); (Bushling, supra, 117 Cal. App. 4th at p. 510, 11 Cal. Rptr. 3d 653.) “Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.” (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App. 4th 703, 718, 128 Cal. Rptr. 2d 529.) “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon, supra, 55 Cal. 4th at p. 770, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.) “[T]he gatekeeper’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” [Emphasis added] (Id. at p. 772, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.)

See, Sanchez v. Kern Emergency Med. Transportation Corp. (2017) 8 Cal. App. 5th 146, 153 and 155–56, as modified (Feb. 16, 2017).

In ¶ 7, Dr. Ardary does explicate various items which are thusly averred to be within or even exceed the standard. However, Plaintiff’s expert’s contrary opinion on some other subjects does create a material issue for the factfinder. Specifically, the Declaration of Doumanian identifies and explains the applicable standard of care and the causal basis for both Matar and Nahigian’s negligent acts and omissions in a manner that satisfies the above-described standard. Decl. of Doumanian, ¶¶6-12.

Accordingly, the Court will deny summary judgment.

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RULING:

Deny the motion.

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In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Haitham Matar, D.D.S.’s Motion for Summary Judgment came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: DENIED IN ITS ENTIRETY

DATE: _______________ _______________________________

JUDGE