This case was last updated from Los Angeles County Superior Courts on 08/01/2020 at 11:37:58 (UTC).

KUN GAO VS CHUNYI YIN DDS ET AL

Case Summary

On 05/02/2018 KUN GAO filed an Other lawsuit against CHUNYI YIN DDS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4842

  • Filing Date:

    05/02/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

LAURA A. SEIGLE

 

Party Details

Plaintiff and Petitioner

GAO KUN

Defendants and Respondents

ESTATE OF STEVE LEE

DOES 1 TO 10

YIN CHUNYI DDS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

MILLER RICHARD T. ESQ.

Defendant and Respondent Attorneys

BRADFORD THOMAS R. ESQ.

SAVAGE JAMES D. ESQ.

 

Court Documents

Request for Dismissal

3/11/2020: Request for Dismissal

Declaration - DECLARATION DECLARATION OF RICHARD T. MILLER IN OPPOSITION TO DEFENDANT, ESTATE OF STEVE LEE, D.D.S MOTION FOR SUMMARY JUDGMENT

2/3/2020: Declaration - DECLARATION DECLARATION OF RICHARD T. MILLER IN OPPOSITION TO DEFENDANT, ESTATE OF STEVE LEE, D.D.S MOTION FOR SUMMARY JUDGMENT

Separate Statement

2/3/2020: Separate Statement

Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO 1

2/13/2020: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO 1

Motion in Limine - MOTION IN LIMINE MOTION IN LLIMINE NO 6

2/13/2020: Motion in Limine - MOTION IN LIMINE MOTION IN LLIMINE NO 6

Reply - REPLY REPLY TO OPPOSITION

2/19/2020: Reply - REPLY REPLY TO OPPOSITION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

2/24/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Separate Statement

12/13/2019: Separate Statement

Proof of Personal Service

12/13/2019: Proof of Personal Service

Notice of Posting of Jury Fees

5/30/2019: Notice of Posting of Jury Fees

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

7/25/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

REQUEST FOR ENTRY OF DEFAULT -

6/28/2018: REQUEST FOR ENTRY OF DEFAULT -

CIVIL DEPOSIT -

7/27/2018: CIVIL DEPOSIT -

DEFENDANTS ESTATE OF STEVE LEE D.D.S DEMAND FOR JURY TRIAL

7/27/2018: DEFENDANTS ESTATE OF STEVE LEE D.D.S DEMAND FOR JURY TRIAL

DEMAND FOR JURY TRIAL

6/11/2018: DEMAND FOR JURY TRIAL

STATEMENT OF DAMAGES

6/14/2018: STATEMENT OF DAMAGES

PROOF OF SERVICE SUMMONS -

5/23/2018: PROOF OF SERVICE SUMMONS -

SUMMONS -

5/2/2018: SUMMONS -

41 More Documents Available

 

Docket Entries

  • 03/27/2020
  • Docketat 08:30 AM in Department 27, Laura A. Seigle, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 03/17/2020
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Kun Gao (Plaintiff)

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  • 03/13/2020
  • Docketat 10:00 AM in Department 27, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 03/12/2020
  • DocketOrder (proposed judgement after granting); Filed by Estate of Steve Lee (Defendant)

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  • 03/11/2020
  • DocketRequest for Dismissal; Filed by Kun Gao (Plaintiff)

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  • 02/27/2020
  • Docketat 1:30 PM in Department 4B; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 02/27/2020
  • DocketNotice of Ruling; Filed by Estate of Steve Lee (Defendant)

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  • 02/24/2020
  • Docketat 1:30 PM in Department 27, Laura A. Seigle, Presiding; Hearing on Motion for Summary Judgment - Held - Motion Granted

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  • 02/24/2020
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Judgment) of 02/24/2020); Filed by Clerk

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  • 02/24/2020
  • DocketObjection (Plaintiff's Supplemental Opposition and Memorandum of Points and Authorities to Defendant, Estate of Steve Lee's D.D.S.'s Motion for Summary Judgment.); Filed by Kun Gao (Plaintiff)

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58 More Docket Entries
  • 05/30/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/24/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/24/2018
  • DocketProof-Service/Summons; Filed by Kun Gao (Plaintiff)

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  • 05/23/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/23/2018
  • DocketProof-Service/Summons; Filed by Kun Gao (Plaintiff)

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  • 05/22/2018
  • DocketProof-Service/Summons; Filed by Kun Gao (Plaintiff)

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  • 05/22/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/02/2018
  • DocketCOMPLAINT FOR DAMAGES (DENTAL MALRACTICE)

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  • 05/02/2018
  • DocketSUMMONS

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  • 05/02/2018
  • DocketComplaint; Filed by Kun Gao (Plaintiff)

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Tentative Rulings

Case Number: BC704842    Hearing Date: February 24, 2020    Dept: 27

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On May 2, 2018, plaintiff Kun Gao (“Plaintiff”) filed this action against defendants Chunyi Yin, DDS and the estate of Steve Lee, D.D.S. (“Defendant”) for medical malpractice relating to tooth implants and crowns placed on April 2 and December 19, 2015, respectively. Plaintiff dismissed Dr. Yin on December 24, 2019, leaving the estate as the remaining defendant. Defendant moves for summary judgment on the grounds that Plaintiff’s action is time-barred pursuant to Code of Civil Procedure section 340.5.

II. FACTUAL BACKGROUND

Plaintiff alleges Dr. Lee negligently examined, diagnosed, and treated Plaintiff and placed tooth implants that failed, requiring bone removal and subsequent bone grafts. (Compl., ¶ 5.) On April 2, 2015, Plaintiff had dental implants placed in the areas of teeth Nos.14 and 15. (UMF No. 6.) On December 19, 2015, crowns were placed over those implants. (UMF No. 7.) Plaintiff testified that she “was satisfied with the crowns” and she “expect [sic] the whole implant procedure is already completed” on the day the crowns were placed. (Goa Depo., 70:12-22.) Plaintiff testified that approximately one year after her implants were placed, she felt movement in one implant and felt the implant was loose. (UMF No. 10.) That implant fell out. Plaintiff testified that the time between the implant becoming loose and falling out was “very short . . . like in one week.” (Goa Depo, 163:16-19.) Plaintiff testified that she first believed the treatment she had received from Dr. Lee may have been negligent after she felt the movement of the implant. (Gao Depo., 161:10-18.)

Plaintiff then made an appointment with Dr. Lee to discuss problems with the implant. Plaintiff testified she made the appointment with Dr. Lee “maybe three days” after feeling the implant was loose. (Goa Depo., 71:20-15.) On about February 8, 2017, Dr. Lee indicated a bone density test might be needed. (Plaintiff’s Additional Material Facts No. 20; Goa Decl., ¶ 4.)

Plaintiff served her Notice of Intent on February 20, 2018 in compliance with Code of Civil Procedure section 364. (UMF No. 18.) Plaintiff filed her complaint on May 2, 2018. (UMF No. 19.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is [different] than the burden to show [that] one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case . . . ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense’. . . . If the defendant does not meet this burden, the motion must be denied.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468 [citing Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289–290].) It is not the plaintiff’s burden to disprove affirmative defenses asserted by the defendant.

IV. EVIDENTIARY OBJECTIONS

Defendant’s Objections:

Nos. 1-3 are arguments, not evidentiary objections.

No. 4 is OVERRULED. Defendant submitted the file with Defendant’s moving papers.

No. 5 is SUSTAINED.

Nos. 6- 9 are OVERRULED.

V. DISCUSSION

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.) A defendant must be provided at least 90 days’ prior notice of the intention to commence an action based upon the health care provider’s professional negligence. (Code Civ. Proc., § 364(a).) When a plaintiff gives this 90-day notice of intent in the last 90 days of the 1-year statute of limitations, the statute is tolled for 90 days such that a plaintiff has a period of 1 year and 90 days in which to file a lawsuit. (Woods v. Young (1991) 53 Cal.3d 315, 325.)

The one-year limitations period does not begin to run until the plaintiff discovers both his or her injury and its negligent cause. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189). The “injury” occurs at “the point at which ‘appreciable harm’ is first manifested.” (Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8; Drexler, supra, 4 Cal.App.5th at p. 1190 [“The word ‘injury’ in section 340.5 ‘refers to the damaging effect of the alleged wrongful act and not the act itself’”]; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [“Once the damaging effect of the alleged wrongful act is apparent, the statute is activated”].)

Defendant contends the statute of limitations began to run by December 26, 2016 because Plaintiff suspected Dr. Lee’s treatment may have been negligent when she felt movement of the implant, which occured about a year after the implants were placed. Therefore, Defendant argues the one-year statute of limitations period expired on December 26, 2017. Plaintiff argues there are disputed facts, and that not until 2018 did Plaintiff consult with a lawyer who had the dental charts reviewed to determine that Dr. Lee had not exercised the proper standard of care.

The following facts are undisputed, as detailed above. On December 19, 2015, crowns were placed over Plaintiff’s implants. About one year later, Plaintiff felt movement in one of the implants. Plaintiff first believed the treatment she had received from Dr. Lee may have been negligent after she felt the movement of the implant. About three days after feeling the implant was loose, she made an appointment with Dr. Lee. About a week after the implant became loose, it fell out. On about February 8, 2017, Dr. Lee indicated a bone density test might be needed. Later medical records reveal that Plaintiff had lost the implants at issue within a year of them being placed. (UMF No. 16.)

This timeline establishes that before the appointment with Dr. Lee on about February 8, 2017, Plaintiff felt her implant move and believed Dr. Lee’s treatment may have been negligent. (Indeed, the later medical records indicate the implant had fallen out earlier, by December 19, 2016.) Thus, before February 8, 2017 (and likely as early as December 19, 2016), Plaintiff was aware of her injury (the faulty implant) and the negligent cause (Dr. Lee’s treatment). This timeline means the statute of limitations had begun to run before February 8, 2017, and the statutory period had expired before February 8, 2018. Plaintiff did not serve her Notice of Intent letter until more than a year later on February 20, 2018. At that point, the statute of limitations had already expired, so the Notice of Intent letter did not toll or extend the statute of limitations. In sum, when Plaintiff filed her complaint on May 2, 2018, it was many months late, and her claim was time-barred.

VI. CONCLUSION

In light of the foregoing, the motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.