On 10/24/2017 MARGARET DURAN filed a Personal Injury - Medical Malpractice lawsuit against ISMAIL I ELSHERIF D D S. 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 Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
DOES 1 TO 10 INCLUSIVE
ELSHERIF ISMAIL I. D.D.S.
WASSERMAN MICHAEL E. ESQ.
HAGGERTY WILLIAM C. ESQ.
3/15/2019: Stipulation and Order
5/3/2019: Motion to Be Relieved as Counsel
5/3/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil
6/25/2018: PROOF OF SERVICE OF SUMMONS
7/31/2018: ANSWER TO COMPLAINT
7/31/2018: DEMAND FOR JURY TRIAL
Motion to Be Relieved as Counsel; Filed by Michael E. Wasserman, Esq. (Attorney)Read MoreRead Less
Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Michael E. Wasserman, Esq. (Attorney)Read MoreRead Less
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Stipulation and Order (stip and order to continue trial); Filed by Ismail I. D.D.S. Elsherif (Defendant)Read MoreRead Less
Answer; Filed by Ismail I. D.D.S. Elsherif (Defendant)Read MoreRead Less
Receipt; Filed by Ismail I. D.D.S. Elsherif (Defendant)Read MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
ANSWER TO COMPLAINTRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
Proof-Service/Summons; Filed by Margaret Duran (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Summons; Filed by Margaret Duran (Plaintiff)Read MoreRead Less
Complaint for Good Faith Settlement Pursuant to CCP Sections 877 and 877.6Read MoreRead Less
Complaint; Filed by Margaret Duran (Plaintiff)Read MoreRead Less
Case Number: BC681187 Hearing Date: January 14, 2020 Dept: 4B
[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On October 24, 2017 Plaintiff Margaret Duran filed an action against defendant Ismail I. Elsherif, D.D.S. (“Defendant”) for negligence relating to dental care she received from April 2009 through October 24, 2016. Defendant moves for summary judgment on the grounds that there is no triable issue of fact respect to the standard of care provided in connection with Plaintiff’s care. No party opposed the motion.
II. FACTUAL BACKGROUND
From April 2009 to October 24, 2016, Plaintiff received dental treatments from Defendant. (Undisputed Material Fact (“UMF”) No. 1.) Plaintiff was first seen by Defendant in April 2009, when she was diagnosed for root canal treatments, gum treatment, and crowns. (UMF No. 4.) In late 2010, Defendant placed implants in her upper right and upper left premolar areas, which were restored and completed. (UMF No. 5.) In 2012, three of Plaintiff’s root canal teeth became re-infected and she was given the choice of re-treatment of the root canals, or extraction and implants. (UMF No. 6.) Plaintiff chose extraction and implants. (UMF No. 6.) The teeth were extracted and replaced with implants in 2012.
In 2014, Plaintiff was noted for implants in the upper left molar area after she stated that she wanted to improve her mastication power. (UMF No. 8.) Defendant placed these implants. The implants were exposed in 2015, so Defendant restored him. (UMF No. 9.) Plaintiff did not attend any follow-up appointments for the restoration of the implants for almost a year. (UMF No. 9.)
In 2016, Plaintiff visited Defendant’s office for a dental exam, during which x-rays were performed and her natural teeth and implants placed by Defendant were functioning and in good condition. Defendant explained that three implants needed to be removed and the area needed to be grafted as a preventative measure to maintain bone level. The removal and grafting occurred on October 24, 2016. Plaintiff did not return for additional follow-up visits.
Plaintiff alleges that after being treated by Defendant on October 24, 2016, she consulted with other dental specialists. (UMF No. 2.) She claims the dental implants were improperly placed resulting in sinus perforation and the failure of the teeth implants. (UMF No. 2.)
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.) “[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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)
To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)
“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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.3d 977, 984-985.)
Defendant presents the expert declaration of Barton Kubelka, D.D.S. Dr. Kubelka owns a general and family dentistry practice in Los Alamitos, California and was previously the chief of dental surgery at Cerritos Gardens Hospital. He has also served as a director who established quality assurance systems for various dental plans. After reviewing Plaintiff’s medical records, Dr. Kubelka opined that Defendant’s treatment and care met or exceeded the standard of care, and that Defendant did not cause Plaintiff’s injuries. According to Dr. Kubelka, Defendant properly diagnosed and planned treatment for the placement of implants on Plaintiffs, and the placing of implants was appropriate and within the standard of care. (UMF No. 13.) Dr. Kubelka further stated that Defendant’s recommendation to remove the implants because of his concerns over bone loss was appropriate and within the standard of care. (UMF No. 16.) Dr. Kubelka also testified that implants can fail without any negligence on the part of the dentist, and that a certain percentage of implants fail, and there is no indication that Defendant was negligent. (UMF No. 17.) Accordingly, he concludes that Defendant did not cause or contribute to Plaintiff’s alleged injuries. (UMF No. 18.)
Based on the above expert opinion, Defendant has met his prima facie burden to show that he acted within the applicable standard of care in treating Plaintiff and he did not cause Plaintiff’s injuries. Because no party opposed this motion, there is no triable issue of material fact, and Defendant’s motion for summary judgment is GRANTED.
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 SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.