This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:11:15 (UTC).

ERIN LOEB VS WILLIAM DANIEL KEITH MD ET AL

Case Summary

On 08/24/2017 ERIN LOEB filed a Personal Injury - Medical Malpractice lawsuit against WILLIAM DANIEL KEITH 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 JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3637

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

LOEB ERIN

Defendants

WILLIAM DANIEL KEITH JR MD INC

KEITH WILLIAM DANIEL M.D.

Attorney/Law Firm Details

Plaintiff Attorney

AGHAEIAN ANI ESQ.

Defendant Attorneys

DUNN HANNAH ROSE

DEANE RYAN PATRICK

 

Court Documents

Notice of Ruling

6/13/2019: Notice of Ruling

Answer

6/13/2019: Answer

Notice of Change of Address or Other Contact Information

6/18/2019: Notice of Change of Address or Other Contact Information

Stipulation - No Order

6/24/2019: Stipulation - No Order

Minute Order

2/7/2019: Minute Order

Certificate of Mailing for

2/25/2019: Certificate of Mailing for

Minute Order

2/25/2019: Minute Order

Proof of Service by Substituted Service

4/5/2019: Proof of Service by Substituted Service

Proof of Service - No Service

4/5/2019: Proof of Service - No Service

Minute Order

4/8/2019: Minute Order

Declaration

4/26/2019: Declaration

Demurrer - with Motion to Strike (CCP 430.10)

4/26/2019: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

4/26/2019: Motion to Strike (not initial pleading)

Notice of Deposit - Jury

4/26/2019: Notice of Deposit - Jury

Minute Order

5/9/2019: Minute Order

Opposition

5/16/2019: Opposition

Reply

5/22/2019: Reply

Minute Order

5/30/2019: Minute Order

7 More Documents Available

 

Docket Entries

  • 08/24/2020
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 11/20/2019
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 11/06/2019
  • Hearingat 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 06/24/2019
  • DocketJoint Stipulation to Continue Trial; Filed by WILLIAM DANIEL M.D. KEITH (Defendant); WILLIAM DANIEL KEITH JR MD, INC (Defendant)

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  • 06/18/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Ryan Patrick Deane (Attorney)

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  • 06/13/2019
  • DocketNotice of Ruling; Filed by WILLIAM DANIEL M.D. KEITH (Defendant); WILLIAM DANIEL KEITH JR MD, INC (Defendant)

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  • 06/13/2019
  • DocketAnswer; Filed by WILLIAM DANIEL M.D. KEITH (Defendant); WILLIAM DANIEL KEITH JR MD, INC (Defendant)

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  • 05/30/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 05/30/2019
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10))); Filed by Clerk

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  • 05/22/2019
  • DocketReply (Reply to Opposition to Demurrer); Filed by WILLIAM DANIEL M.D. KEITH (Defendant); WILLIAM DANIEL KEITH JR MD, INC (Defendant)

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9 More Docket Entries
  • 04/05/2019
  • DocketProof of Service by Substituted Service; Filed by ERIN LOEB (Plaintiff)

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  • 04/05/2019
  • DocketProof of Service - No Service; Filed by ERIN LOEB (Plaintiff)

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  • 02/25/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 02/25/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

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  • 02/25/2019
  • DocketCertificate of Mailing for (Minute Order (Jury Trial) of 02/25/2019); Filed by Clerk

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  • 02/07/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 02/07/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 09/21/2017
  • DocketNotice of Change of Address or Other Contact Information

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  • 09/21/2017
  • DocketNotice of Change of Address or Other Contact Information; Filed by ERIN LOEB (Plaintiff)

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  • 08/24/2017
  • DocketComplaint; Filed by ERIN LOEB (Plaintiff)

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Tentative Rulings

Case Number: ****3637 Hearing Date: March 25, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ERIN LOEB,

Plaintiff(s),

vs.

WILLIAM DANIEL KEITH, M.D., ET AL.,

Defendant(s).

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CASE NO: ****3637

[TENTATIVE] ORDER GRANTING MOTION TO CONTINUE TRIAL DATE

Dept. 31

1:30 p.m.

March 25, 2022

On August 24, 2017, Plaintiff, Erin Loeb (“Plaintiff”) filed this action against Defendants, William Daniel Keith, M.D. (“Dr. Keith”) and William Daniel Keith, Jr., M.D., Inc. (collectively, “Defendants”) for damages arising out of Defendants’ removal of a birthmark from Plaintiff’s left cheek. Plaintiff alleges Defendants left the birthmark uneven, discolored, and looking worse than it did prior to treatment. Trial in this matter is currently March 28, 2022.

Plaintiff now moves to continue the current trial date for 120 days. Defendants oppose the motion, and Plaintiff filed a reply.

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (CRC Rule 3.1332(c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial. (See generally, CRC Rule 3.1332(d)(1)-(11).) Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; the proximity of the trial date; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (CRC Rule 3.1332(c), (d).)

Here, Plaintiff argues there is good cause to continue the trial date because there is a breakdown in communication between Plaintiff and Plaintiff’s attorney of record, and Plaintiff seeks additional time to consult with other counsel. Plaintiff provides while the court granted her ex parte application to continue trial on November 23, 2021, which continued the then trial date of December 1, 2021, to March 28, 2022, Plaintiff’s mother passed away on December 10, 2021, and Plaintiff was diagnosed with and treated for Covid-19 a few weeks later, with the most recent treatment being on January 26, 2022. Plaintiff asserts that due to these circumstances, she has not had the opportunity to obtain consultations with other attorneys. Further, Plaintiff asserts her current attorney of record does not have authority to take this matter to trial.

In opposition, Defendants argue a trial continuance is unreasonable because Plaintiff’s reasons for a continuance currently are the same as those Plaintiff gave for the trial continuance granted in November 2021. Defendants assert they are prepared for trial and should not be prejudiced by Plaintiff’s dilatory actions. Additionally, Defendants argue that a breakdown in communication between Plaintiff and Plaintiff’s counsel, and Plaintiff’s inability to retain new counsel, is not sufficient good cause to continue trial, as there is no evidence of any steps taken by Plaintiff to obtain new counsel. Similarly, Defendants contend Plaintiff contracting Covid-19 and the death of Plaintiff’s mother do not provide good cause to continue trial.

Plaintiff, in reply, asserts she is actively consulting with multiple attorneys, and Plaintiff’s inability to retain new counsel by the current trial date of March 28, 2022, is due to circumstances beyond her control. Plaintiff further contends that Defendants fail to explain how a continuance will prejudice them.

The current trial date was set on November 23, 2021, following an ex parte application to continue the trial date by Plaintiff. Plaintiff then filed the instant motion on March 1, 2022, setting it for hearing on March 28, 2022, which is only one court day before the trial date. Plaintiff does not submit any evidence concerning what efforts Plaintiff has undertaken to obtain new counsel; however, Plaintiff asserts that Plaintiff’s current attorney of record is not authorized to proceed to try this matter. Moreover, Plaintiff attests she is currently consulting with other counsel following the breakdown in communication with her current counsel. Neither party identifies any prejudice that will be suffered as a result of a slight continuance.

Based on the foregoing, Plaintiff’s motion to continue trial is granted. The parties are put on notice that there will be no further continuances in this action, particularly given its age. The parties must plan all trial preparation accordingly.

Plaintiff’s motion to continue trial is granted. The March 28, 2022, trial date is continued to July 19, 2022 at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The March 28, 2022, FSC is continued to July 7, 2022 at 10:00 a.m. in Department 31.

Plaintiff is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 25th day of March 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****3637    Hearing Date: May 11, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ERIN LOEB,

Plaintiff(s),

vs.

WILLIAM DANIEL KEITH, M.D., ET AL.,

Defendant(s).

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CASE NO: ****3637

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO QUASH

Dept. 31

1:30 p.m.

May 11, 2021

Background

Plaintiff, Erin Loeb (“Plaintiff”) filed this action against Defendants, William Daniel Keith, M.D. (“Dr. Keith”) and William Daniel Keith, Jr., M.D., Inc. (collectively, “Defendants”) for damages arising out of Defendants’ removal of a birthmark from Plaintiff’s left cheek. Plaintiff alleges Defendants left the birthmark uneven, discolored, and looking worse than it did prior to treatment.

Plaintiff, at this time, moves to quash eight subpoenas for production of business records served by Defendant Dr. Keith. Defendants oppose the motion. As of 5/7/21, the court has not received a reply.

Motion to Quash

Plaintiff moves to quash Defendants’ subpoenas for production of business records served on (1) New Era General Service, Inc. (medical records); (2) New Era General Service, Inc. (billing records); (3) New Era General Service, Inc. (radiology); (4) True Sleep (medical records and radiology); (5) True Sleep (billing); (6) Vanguard Psychiatric Group (medical records); (7) Vanguard Psychiatric Group (billing records); and (8) Law Offices of Stacy L. Tolunaga. The requested records concern Plaintiff’s medical records and workers’ compensation records.

Plaintiff argues the subpoenas are overbroad as to time and scope and seek documents unrelated to Plaintiff’s injuries sustained in this action. Plaintiff asserts the subpoenas violate Plaintiff’s right to privacy, but Defendants refuse to limit or withdraw the subpoenas. Plainitff avers Defendants fail to show how these records are relevant to Plaintiff’s specific injury related to the mole on her left cheek.

In opposition, Defendants contend they are entitled to the production of Plaintiff’s records associated with her 2009 workers’ compensation claim because the claims was based on an alleged injury to her head and nervous system, and Plaintiff now alleges to have suffered emotional injuries, including stress and anxiety, as a result of Defendants’ conduct in this case. Defendants contend the eight subpoenas are relevant and concern the same body parts at issue in this action. Defendants assert that if there are no records concerning Plaintiff’s stress or anxiety they are entitled to a Certificate of No Records.

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable. Evidence Code ;; 996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862–864. Normally, information about medical conditions entirely different from the injury sued upon is beyond the scope of discovery. However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code ;999; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314–1315 [good cause shown by info that plaintiff was blind 6 months before accident].)

In this case, Defendants contend the requested records are relevant to Plaintiff’s claim for emotional damages, including stress and anxiety, and the requested records concern the same body part at issue in this action. However, each the of the subject subpoena essentially requests, “Complete medical records from the first date of treatment to the present,” and “Complete non-privileged records from the first date of correspondence to the present.” (See Mot. Separate Statement.)

The subpoenas demand all records concerning Plaintiff from first date of treatment or correspondence to present. This would necessarily include information regarding any treatment Plaintiff has ever received for any condition Plaintiff may have had whether related to the subject emotional injuries or injury concerning her mole. Defendants do not establish a need for Plaintiff’s complete medical history with the subject entities, nor why information concerning prior injuries not related to Plaintiff’s emotional damages claims are relevant in this matter.

While Defendants provide evidence showing information regarding Plaintiff’s claimed emotional damages are relevant to this action, Defendants fail to meaningfully articulate why Plaintiff’s complete medical records from each entity subpoenaed, without any limitation to time, is discoverable in this action. Therefore, Defendants failed to meet its burden to show that the records it seeks are so relevant as to outweigh Plaintiff’s right to privacy.

Based on the foregoing, Plaintiff’s motion to quash is granted.

For purposes of assisting the parties in connection with meet and confer efforts, the court advises that it would be inclined to limit any future subpoena to relevant emotional damages claimed by Plainitff.

Plaintiff requests sanctions of $2,435.00 against Defendant pursuant to CCP ;; 2023.030 and 1987.2. Here, Plainitff requests sanctions of $960 against Defendants. Plainitff, however, failed to identify “every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought” in the notice of motion. (CCP ; 2023.040.) Therefore, no sanctions are imposed.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf 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 remotely.

Dated this 11th day of May, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****3637    Hearing Date: March 18, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ERIN LOEB,

Plaintiff(s),

vs.

WILLIAM DANIEL KEITH, M.D., ET AL.,

Defendant(s).

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CASE NO: ****3637

[TENTATIVE] ORDER CONTINUING PLAINTIFF’S MOTION TO QUASH

Dept. 31

1:30 p.m.

March 18, 2021

Plaintiff, Erin Loeb (“Plaintiff”) filed this action against Defendants, William Daniel Keith, M.D. (“Dr. Keith”) and William Daniel Keith, Jr., M.D., Inc. (collectively, “Defendants”) for damages arising out of Defendants’ removal of a birthmark from Plaintiff’s left cheek. Plaintiff alleges Defendants left the birthmark uneven, discolored, and looking worse than it did prior to treatment.

Plaintiff, at this time, moves to quash 8 subpoenas for production of business records served by Defendant Dr. Keith.

Plaintiff filed the motion to quash on 10/27/20. Defendants filed an opposition on 3/5/21. Plaintiff then filed a separate statement and supplemental declaration by Plaintiff’s counsel on 3/11/21. Plaintiff’s counsel provides it inadvertently did not file the separate statement with the motion and did not serve it on Defendants until 3/11/21. Plaintiff’s counsel states it intends to seek a continuance to allow Defendants sufficient time to review the separate statement.

The court will continue the motion so that Defendants may respond to the separate statement. Any response to the separate statement must be served at least 9 court days before the hearing. Any reply must be served at least 5 court days before the continued hearing.

Plaintiff’s motion to quash is continued to _________________________.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@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 remotely.

Dated this 18th day of March, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****3637    Hearing Date: June 25, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ERIN LOEB,

Plaintiff(s),

vs.

WILLIAM DANIEL KEITH, M.D., ET AL.,

Defendant(s).

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CASE NO: ****3637

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 31

1:30 p.m.

June 25, 2020

I. Background

Plaintiff, Erin Loeb filed this action against Defendants, William Daniel Keith, M.D. (“Dr. Keith”) and William Daniel Keith, Jr., M.D., Inc. (collectively, “Defendants”) for damages arising out of Defendants’ removal of a birthmark from Plaintiff’s left cheek. Plaintiff alleges Defendants left the birthmark uneven, discolored, and looking worse than it did prior to treatment. Plaintiff alleges causes of action for negligence and medical negligence, and seeks to recover general damages, special damages, interest on economic damages, and costs of suit.

II. Motion for Summary Judgment

  1. Moving Argument

Defendants argue they are entitled to summary judgment as to Plaintiff’s medical malpractice claim because Defendants’ evidence establishes that Defendants’ care and treatment of Plaintiff was at all times within the applicable standard of care, and nothing they did caused or contributed to Plaintiff’s alleged injuries and damages. Defendants support their motion with the expert declaration of Keith A. Marcus, M.D. Dr. Marcus opines that Defendants did not breach the standard of care owed to Plaintiff and also that Defendants did not cause or contribute to any of Plaintiff’s claimed damages.

  1. Opposing Argument

Plaintiff argues that Defendants failed to comply with the standard of care, and the breach caused Plaintiff damages. Plaintiff supports her opposition with the declaration of Stephen P. Grifka, M.D. Dr. Grifka opines that Defendants breached the standard of care, and that the breach caused or contributed to Plaintiff’s injuries and damages

  1. Law Governing Standard of Care

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

  1. Law Governing Causation

    In order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.

  2. Basic Undisputed Facts

    The basic facts relating to this matter are undisputed. Plaintiff presented to Defendants on May 26, 2016, for a consultation concerning removing Plaintiff’s birthmark on her left cheek. Following the consultation, Defendants locally anesthetized and prepped to remove the birthmark. Defendants then attempted to shave the mole. Following the procedure, the lesion was dressed with membrane waterproof dressing, and Defendants explained that Plaintiff needed to keep the dressing for 4 to 7 days before removing it. Defendants then gave Defendant postop care instructions.

    However, the parties dispute whether Plaintiff had her birthmark shaved by a prior physician, and what, if any, risks and benefits to the procedure were discussed by Defendants with Plaintiff.

  3. Objections

Defendants, in reply, submit five objections to Dr. Grifka’s declaration attached to Plaintiff’s opposition. In particular, Defendants object to paragraphs 9-14 of Dr. Grifka’s declaration.

In ruling on the remaining objections, the Court is guided as follows: an expert opinion must be supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value. See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155.

In Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123-124, the court of appeals considered this issue at length. It held:

Simply because the defendant doctor provides an unopposed declaration by an expert does not necessarily mean the court should grant summary judgment. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (Kelley), Division Seven of the Second District Court of Appeal held that “a defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion.” (Id. at p. 521, 78 Cal.Rptr.2d 122.)

The court of appeals went on to discuss a case where the plaintiff’s expert declaration was less than a model of clarify. It noted that the standard of review for the plaintiff’s opposing declaration was lower than the standard of review for the defendant’s moving declaration. Specifically, it held:

We, however, can reconcile Kelley and Hanson. The court in Kelley was considering the sufficiency of the declaration of the defendant's expert in support of the defendant's motion for summary judgment. In such cases, the defendant “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (See, e.g., Aguilar, supra, 25 Cal.4th at p. 845, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Thus, the Kelley court was considering the burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. To meet such a burden, the Kelley court concluded the declaration of the defendant's expert had to be detailed and with foundation. (Kelley, supra, 66 Cal.App.4th at p. 524, 78 Cal.Rptr.2d 122.) In contrast, the court in Hanson was considering the sufficiency of the declaration of the plaintiff's expert in opposition to the defendant's summary judgment motion. In such a case, the declaration submitted by the plaintiff did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion. (Hanson, supra, 76 Cal.App.4th at pp. 607–608, 90 Cal.Rptr.2d 396.)

We conclude that both the Kelley and Hanson courts properly applied the rule that, when considering the declarations of the parties' experts, we liberally construe the declarations for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (See, e.g., Zavala v. Arce, supra, 58 Cal.App.4th at p. 935, 68 Cal.Rptr.2d 571.)2 Accordingly, we apply this well-settled rule of evidence when considering Powell's expert's declaration.

Here, Defendants’ objections Nos. 1-5 are overruled in their entirety.

  1. Analysis

    The Court finds Defendants met their moving burden to show they are entitled to judgment as a matter of law on the ground that they complied with the standard of care at all times and did not cause Plaintiff’s injuries.

    Plaintiff, however, through the declaration of Dr. Grifka, raises triable issues of material fact in both regards. Specifically, Dr. Grifka opines that Defendants breached their duties to Plaintiff by (a) allegedly failing to inform Plaintiff of any risks or complications associated with the shaving procedure, and thus failing to obtain informed consent from Plaintiff, (Opp. Grifka Decl. ; 11); (b) by particularly failing to inform Plaintiff of Dr. Keith’s trembling hand, which more likely than not led to the extension of hypopigmented deformity, (Id. ; 12); and (c) by failing to provide any post-procedure follow-up care despite Plaintiff contacting Defendants’ office to express concern. (Id. ; 13.) Dr. Grifka opines that this conduct caused harm or injury to Plaintiff by leaving the mole with a mottled appearance, leaving the mole with an inconsistent hyperpigmented border, and leaving hypopigmentation extending beyond the mole. (Id. ; 14.)

    Because Plaintiff raises triable issues of material fact concerning standard of care and causation, the motion for summary judgment is denied.

    Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@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 parties do not submit on the tentative they should arrange to appear remotely. 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.

    Dated this 25th day of June, 2020

Hon. Thomas D. Long

Judge of the Superior Court



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