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This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 15:43:29 (UTC).

SYLVIA VASQUEZ VS ANDRE BERGER, MD

Case Summary

On 10/26/2016 SYLVIA VASQUEZ filed a Personal Injury - Medical Malpractice lawsuit against ANDRE BERGER, MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8542

  • Filing Date:

    10/26/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

VASQUEZ SYLVIA

Defendants and Respondents

BERGER ANDRE MD

REJUVALIFE MEDICAL ASSOCIATES

DOES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JOHN W. MARTIN

MARTIN JOHN W.

Defendant and Respondent Attorneys

BARKUS RAMUNE E. ESQ.

SCHNEIDER STEPHANIE BERMAN ESQ.

 

Court Documents

NOTICE OF ASSOCIATION OF COUNSEL

2/20/2018: NOTICE OF ASSOCIATION OF COUNSEL

Notice of Stay of Proceedings

3/2/2018: Notice of Stay of Proceedings

NOTICE OF LODGING OF STIPULATLON AND PROPOSED ORDER REGARDING EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDA

3/9/2018: NOTICE OF LODGING OF STIPULATLON AND PROPOSED ORDER REGARDING EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDA

EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS' LIABILITY CARRIER, FAIRWAY PHYSICIANS INSU

3/9/2018: EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS' LIABILITY CARRIER, FAIRWAY PHYSICIANS INSU

Minute Order

3/9/2018: Minute Order

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND RFJUVALIFF MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS'

3/9/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND RFJUVALIFF MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS'

NOTICE OF RULING RE EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS? LIABILITY CARRIER

3/14/2018: NOTICE OF RULING RE EX PARTE APPLICATION BY DEFENDANTS ANDRE BERGER, M.D., AND REJUVALIFE MEDICAL ASSOCIATES TO STAY CASE AND VACATE TRIAL DATE DUE TO LIQUIDATION OF DEFENDANTS? LIABILITY CARRIER

Status Report

10/19/2018: Status Report

Status Report

11/2/2018: Status Report

Minute Order

11/7/2018: Minute Order

Notice of Ruling

11/21/2018: Notice of Ruling

Notice

1/18/2019: Notice

Minute Order

1/25/2019: Minute Order

Status Report

4/22/2019: Status Report

Substitution of Attorney

5/3/2019: Substitution of Attorney

COMPLAINT FOR MEDICAL MALPRACTICE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

10/26/2016: COMPLAINT FOR MEDICAL MALPRACTICE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

PROOF OF SERVICE OF SUMMONS

2/14/2017: PROOF OF SERVICE OF SUMMONS

Request for Judicial Notice

11/9/2017: Request for Judicial Notice

12 More Documents Available

 

Docket Entries

  • 05/03/2019
  • Substitution of Attorney; Filed by Andre,MD Berger (Defendant)

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  • 04/26/2019
  • Notice of Ruling; Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 04/24/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Status Conference - Not Held - Continued - Stipulation

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  • 04/24/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 04/22/2019
  • Status Report; Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 01/29/2019
  • Notice of Ruling; Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 01/25/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Status Conference - Held - Continued

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  • 01/25/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 01/18/2019
  • Notice (STATUS REPORT RE ONGOING LIQUIDATION OF FAIRWAY PHYSICIANS INSURANCE COMPANY, IN ADVANCE OF STATUS CONFERENCE); Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 11/21/2018
  • Notice of Ruling (re Continuance of Status Conference re Ongoing Liquidation of Fairway Physicians Insurance Company); Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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24 More Docket Entries
  • 11/09/2017
  • Request for Judicial Notice; Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 03/08/2017
  • Answer; Filed by Andre,MD Berger (Defendant); Rejuvalife Medical Associates (Defendant)

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  • 03/08/2017
  • Answer

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  • 02/14/2017
  • First Amended Complaint; Filed by Sylvia Vasquez (Plaintiff)

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  • 02/14/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 02/14/2017
  • FIRST AMENDED COMPLAINT MEDICAL MALPRACTICE AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

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  • 02/14/2017
  • Proof-Service/Summons; Filed by Sylvia Vasquez (Plaintiff)

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  • 10/26/2016
  • COMPLAINT FOR MEDICAL MALPRACTICE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

    Read MoreRead Less
  • 10/26/2016
  • Complaint; Filed by Sylvia Vasquez (Plaintiff)

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  • 10/26/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC638542    Hearing Date: February 05, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

February 5, 2021

CASE NUMBER

BC638542

MOTION

Motion for Summary Judgment

MOVING PARTIES

Defendants Andre Berger, M.D. and Rejuvalife Medical Associates

OPPOSING PARTY

Plaintiff Sylvia Vasquez

MOTION

Plaintiff Sylvia Vasquez (“Plaintiff”) sued Defendants Andre Berger, M.D. (“Berger”) and Berger’s practice, Rejuvalife Medical Associates (collectively, “Defendants”) for medical malpractice. Plaintiff contends Berger negligently performed a cosmetic procedure on Plaintiff. Defendants move for summary judgment on Plaintiff’s complaint for medical malpractice and negligent infliction of emotional distress.

In reviewing Defendants’ motion for summary judgment, the Court read and considered the following briefs and documents submitted to the Court:

  1. Defendants’ Motion for Summary Judgment; Memorandum of Points and Authorities

  2. Defendants’ Separate Statement

  3. Declaration of Bruce Katz, M.D.

  4. Declaration of Robert C. Reback

  5. Plaintiff’s Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities

  6. Plaintiff’s Separate Statement

  7. Declaration of Sylvia Vasquez

  8. Plaintiff’s Evidentiary Objections

    EVIDENCE

    The Court has reviewed Plaintiff’s evidentiary objects and rules as follows:

  1. Objection 1 re Rejuvalife Patient Records: Sustained on Foundation

  2. Objections 1-17 re Declaration of Bruce Katz, M.D. – Sustained on the grounds stated.

ANALYSIS

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

Defendants contend Plaintiff’s claims are time-barred. Per Code of Civil Procedure section 340.5, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).)

Defendants advance evidence that on July 16, 2014, Plaintiff emailed Berger and asked him to compensate her for the injuries Plaintiff claims she sustained because of the underlying procedure. (Declaration of Robert C. Reback, Exhibit F, pp. 142-144 and Exh, 13 thereto.) Plaintiff therefore knew that Berger caused her injuries by July 16, 2014. The statute of limitations on Plaintiff’s claims elapsed on July 16, 2015. Defendants have advanced evidence that Plaintiff served Defendants with a notice of intent to sue on October 26, 2015. (Declaration of Robert C. Reback, Exh. A.) Plaintiff filed her initial complaint in this action on October 26, 2016. As Defendants have shown that Plaintiff did not serve Defendants with a notice of intent to sue or the complaint in this action prior to the expiration of the statute of limitations, Defendants have met their burden to show that Plaintiff’s claims are time-barred. Defendants have shifted the burden to Plaintiff to raise triable issues of material fact as to whether Plaintiff’s claims are untimely.

In opposition, Plaintiff relies on her own declaration. In it, Plaintiff states that she noticed the scarring on her legs by the beginning of June 2014. (Declaration of Sylvia Vasquez, ¶ 32.) Plaintiff thus concedes she was aware that Berger caused her injuries by that date. “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) If Plaintiff suspected her cosmetic procedure injured her by June 2014, the statute of limitations began to run from that point.

However, Plaintiff argues that Defendants are equitably estopped from raising the statute of limitations. “Equitable estoppel . . . comes into play only after the limitations period has run and addresses the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383, internal quotations and citations omitted.) “The defendant's statement or conduct must amount to a misrepresentation bearing on the necessity of bringing a timely suit; the defendant's mere denial of legal liability does not set up an estoppel.” (Id. at p. 384, fn. 18, emphasis in original.)

In her declaration, Plaintiff states that from July 14, 2014 through July 10, 2015, Berger represented to Plaintiff that Berger would arrange and pay for Plaintiff to undergo a scar revision procedure. (See Declaration of Sylvia Vasquez, ¶¶ 36-49.) If Berger’s assurances that Berger would arrange and pay for Plaintiff to undergo a revision procedure caused Plaintiff to forbear on bringing her suit against Defendants, then Defendants are estopped from raising the statute of limitations. Equally important, Plaintiff claims that it was not until July 2015 that she learned that Berger’s agreement to pay for the revision procedure was conditioned on Plaintiff signing a release, and she further asserts that the July 2015 communication from Berger triggered her inquiry with an attorney who advised that Berger’s conduct may indicate malpractice. (Id. at ¶¶ 49-51.) In short, the Court finds that Plaintiff’s declaration raises triable issues of material fact as to whether Defendants’ conduct amounts to a misrepresentation estopping Defendants from asserting that Plaintiff’s claims are untimely.

Defendants also argue that Berger met the standard of care in his treatment of Plaintiff. To prevail on a claim for professional negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) Expert testimony is the only admissible evidence on breach of the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Defendants advance the declaration of Bruce Katz, M.D. (“Katz”). Katz is a dermatologist. Katz purportedly reviewed Plaintiff’s medical records, as well as the transcript of Plaintiff’s deposition testimony. Katz states that Berger met the standard of care in his treatment of Plaintiff, and that nothing Berger did or failed to do caused or contributed to Plaintiff’s injuries. (Declaration of Bruce Katz, M.D., ¶¶ 8-9.) However, the Court has sustained the evidentiary objections to Katz’s declaration.

Moreover, Plaintiff correctly points out that Defendants did not properly authenticate Plaintiff’s medical records. Defendants were not required to authenticate Plaintiff’s medical records until Plaintiff objected to their admission. (See Evid. Code, § 353.) However, as Plaintiff has objected to the admission of her medical records, the medical records are inadmissible unless Defendants advance testimony of a witness with personal knowledge of the authenticity of Plaintiff’s medical records. (See Evid. Code, § 1413.) Defendants did not do so. Instead, Defendants submitted the medical records as exhibits to the declaration of their counsel, Robert Reback, who lacks personal knowledge of the authenticity of the records. As Defendants did not properly authenticate Plaintiff’s medical records, Katz cannot rely on the records as a basis for his opinions. (See People v. Sanchez (2016) 63 Cal.4th 665, 676-677.) As the evidence on which Katz relies is inadmissible, Katz’s declaration is without evidentiary value. (See Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)

CONCLUSION AND ORDER

Therefore, the Court denies Defendants’ motion for summary judgment and finds that Defendants failed to meet their ultimate burden in establishing that there is no triable issue of material fact. Defendant is ordered to provide notice of this order and file proof of service of such.

Case Number: BC638542    Hearing Date: December 13, 2019    Dept: 5

 

Superior Court of California

County of Los Angeles

Department 5

sylvia vasquez,

Plaintiff,

v.

andre berger, m.d., et al.,

Defendants.

Case No.: BC638542

Hearing Date: December 13, 2019

[TENTATIVE] order RE:

plaintiff’s motion to lift stay

In its order of March 9, 2018, this Court granted an ex parte application by Defendants Andre Berger, M.D. and Rejuvalife Medical Associates (“Defendants”) to stay this action based on an order issued by the Superior Court of the District of Columbia on October 25, 2017. Plaintiff Sylvia Vasquez (“Plaintiff”) now moves the Court to lift the stay.

The District of Columbia Department of Insurance, Securities, and Banking petitioned the Superior Court of the District of Columbia to commence liquidation proceedings against Fairway Physicians Insurance Company (“Fairway”). The Superior Court of the District of Columbia then issued an injunction to stay all actions and proceedings against Fairway and its policyholders. Defendants were policyholders of Fairway and moved this Court to stay the present action based on the order of the Superior Court of the District of Columbia and the Insurance Code. Defendants demonstrated that Fairway is an out-of-state insurer and that the Insurance Code, in adopting the Uniform Insurance Liquidation Act (“UILA”), requires that the parties follow the specific framework therein, which requires presenting claims to the insurance company in liquidation. The Court therefore granted Defendants’ ex parte application to stay this action. Plaintiff has demonstrated that, in its order of August 19, 2019, the Superior Court of the District of Columbia rescinded its order to stay all actions and proceedings against Fairway policyholders. Accordingly, Plaintiff has demonstrated “new or different facts, circumstances, or law” that justify the Court’s lifting its stay order. (See Code Civ. Proc., § 1008.) The motion is granted.

Plaintiff is ordered to provide notice of this order, and file proof of service of such.

DATED: December 13, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC638542    Hearing Date: November 07, 2019    Dept: 5

 

Superior Court of California

County of Los Angeles

Department 5

sylvia vasquez,

Plaintiff,

v.

andre berger, m.d., et al.,

Defendants.

Case No.: BC638542

Hearing Date: October 3, 2019

[TENTATIVE] order RE:

plaintiff’s motion to lift stay

On March 9, 2018, this Court (Lu, J.) granted an ex parte application by Defendants Andre Berger, M.D. and Rejuvalife Medical Associates (“Defendants”) to stay this action based on an order issued by the Superior Court of the District of Columbia on October 25, 2017. The Court ordered Defendants to file a status report on November 7, 2018, concerning the status of the liquidation proceedings.

On November 7, 2018, the Court continued the status conference at the request of Defendants. Per the parties’ oral stipulation, the status conference was continued to January 25, 2019. Per the parties’ oral stipulation, the status conference was continued to April 24, 2019. Per the parties’ stipulation, the status conference was continued to September 12, 2019. Because there was a pending motion, the status conference was continued to October 29, 2019.

In the interim, Plaintiff Sylvia Vasquez (“Plaintiff”) filed a motion for an order lifting the stay and noticed the motion for hearing on October 3, 2019. However, Plaintiff did not file proof of service of this motion on Defendants. Therefore, the Court continued the hearing to November 7, 2019, and ordered Plaintiff to serve the motion on Defendants. Plaintiff failed to do so. As Defendants have not opposed this motion, the Court cannot determine if Defendants received actual notice of this motion. Accordingly, the motion is denied without prejudice for failure to give notice.

In the alternative, the Court denies the motion on the merits. The District of Columbia Department of Insurance, Securities, and Banking petitioned the Superior Court of the District of Columbia to commence liquidation proceedings against Fairway Physicians Insurance Company (“Fairway”). The Superior Court of the District of Columbia then issued an injunction to stay all actions and proceedings against Fairway and its policyholders. Defendants were policyholders of Fairway and moved this Court to stay the present action based on the order of the Superior Court of the District of Columbia and the Insurance Code. Defendants demonstrated that Fairway is an out-of-state insurer and that the Insurance Code, in adopting the Uniform Insurance Liquidation Act (“UILA”), requires that the parties follow the specific framework therein, which requires presenting claims to the insurance company in liquidation. The Court therefore granted Defendants’ ex parte application to stay this action. Plaintiff has not demonstrated “new or different facts, circumstances, or law” that would warrant the Court’s reconsideration of its stay order. (Code Civ. Proc., § 1008.)

CONCLUSION AND ORDER

Plaintiff’s motion to lift the stay is denied. The Court sets an OSC re: Stay for March 4, 2020, at 8:30 a.m. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 7, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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