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This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 16:46:58 (UTC).

MARIA L ARTEAGA VS AFSHIN FARZADMEHR ET AL

Case Summary

On 02/06/2017 MARIA L ARTEAGA filed a Personal Injury - Medical Malpractice lawsuit against AFSHIN FARZADMEHR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9192

  • Filing Date:

    02/06/2017

  • 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

CHRISTOPHER K. LUI

 

Party Details

Plaintiff

ARTEAGA MARIA L.

Defendants and Respondents

FARZADMEHR AFSHIN

SURGERY CENTER OF BEVERLY HILLS INC

MEHR SEAN F.

DOES 1 TO 100

Attorney/Law Firm Details

Plaintiff Attorney

ANVARI SEPENTA ERIC

Defendant Attorney

REBACK ROBERT CARL

 

Court Documents

Proof of Service of Summons and Complaint

3/5/2018: Proof of Service of Summons and Complaint

ANSWER TO COMPLAINT

3/22/2018: ANSWER TO COMPLAINT

Declaration

3/29/2018: Declaration

Demurrer

4/3/2018: Demurrer

Declaration

4/3/2018: Declaration

DEFENDANTS, AFSHIN FARZADMEHR, M.D. AND SURGERY CENTER OF BEVERLY HILLS, INC'S OPPOSITION TO PLAINTIFF'S DEMURRER TO DEFENDANT'S ANSWER TO THE COMPLAINT

4/20/2018: DEFENDANTS, AFSHIN FARZADMEHR, M.D. AND SURGERY CENTER OF BEVERLY HILLS, INC'S OPPOSITION TO PLAINTIFF'S DEMURRER TO DEFENDANT'S ANSWER TO THE COMPLAINT

NOTICE OF RULING RE:PLAINTIFF MARIA L. ARTEAGAS DEMURRER TO DEFENDANTS ANSWER TO COMPLAINT

5/3/2018: NOTICE OF RULING RE:PLAINTIFF MARIA L. ARTEAGAS DEMURRER TO DEFENDANTS ANSWER TO COMPLAINT

ORDER RE DEMURRER TO ANSWER

5/3/2018: ORDER RE DEMURRER TO ANSWER

Minute Order

5/3/2018: Minute Order

DECLARATION OF TRIAL ATTORNEY

5/15/2018: DECLARATION OF TRIAL ATTORNEY

ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

7/2/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

NOTICE OF ORDER RE:TRIAL CONTINUANCE

7/6/2018: NOTICE OF ORDER RE:TRIAL CONTINUANCE

Ex Parte Application

12/13/2018: Ex Parte Application

Minute Order

12/13/2018: Minute Order

Stipulation

5/21/2019: Stipulation

Minute Order

5/22/2019: Minute Order

SUMMONS

2/6/2017: SUMMONS

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

2/6/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10 More Documents Available

 

Docket Entries

  • 06/04/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 05/22/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 05/22/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 05/21/2019
  • Stipulation - No Order (STIPULATION TO CONTINUE TRIAL); Filed by Afshin Farzadmehr (Defendant); Surgery Center of Beverly Hills, Inc (Defendant)

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  • 02/04/2019
  • at 08:30 AM in Department 4; Jury Trial - Not Held - Continued - Party's Motion

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  • 01/23/2019
  • at 10:00 AM in Department 4; Final Status Conference - Not Held - Continued - Party's Motion

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  • 12/20/2018
  • Notice of Ruling; Filed by Afshin Farzadmehr (Defendant); Surgery Center of Beverly Hills, Inc (Defendant)

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  • 12/13/2018
  • at 08:30 AM in Department 4; Ex-Parte Proceedings - Held - Motion Granted

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  • 12/13/2018
  • Ex Parte Application (to Continue Trial); Filed by Afshin Farzadmehr (Defendant); Surgery Center of Beverly Hills, Inc (Defendant)

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  • 12/13/2018
  • Minute Order ((Defendants Afshin Farzadmehr, M.D. and Surgery Center of Beve...)); Filed by Clerk

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24 More Docket Entries
  • 03/22/2018
  • Answer; Filed by Afshin Farzadmehr (Defendant); Surgery Center of Beverly Hills, Inc (Defendant)

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  • 03/05/2018
  • Proof of Service (not Summons and Complaint); Filed by Maria L. Arteaga (Plaintiff)

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  • 03/05/2018
  • Proof of Service of Summons and Complaint

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  • 03/01/2018
  • Proof-Service/Summons; Filed by Maria L. Arteaga (Plaintiff)

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  • 03/01/2018
  • Proof of Service of Summons and Complaint

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  • 01/23/2018
  • SUBSTITUTION OF ATTORNEY

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  • 01/23/2018
  • Substitution of Attorney; Filed by Maria L. Arteaga (Plaintiff)

    Read MoreRead Less
  • 02/06/2017
  • Complaint; Filed by Maria L. Arteaga (Plaintiff)

    Read MoreRead Less
  • 02/06/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 02/06/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC649192    Hearing Date: March 30, 2021    Dept: 28

Motion for Summary Judgment

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 6, 2017, Plaintiff Maria L. Arteaga (“Plaintiff”) filed a complaint against Defendants Afshin Farzadmehr aka Sean F. Mehr (“Defendant Farzadmehr”) and Surgery Center of Beverly Hills, Inc. in the complaint arising from a deficient surgery on February 8, 2016 and deficient consultations that occurred afterwards.

On October 9, 2020, Defendant Surgery Center of Beverly Hills, Inc. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

Trial is set for May 18, 2021.

PARTYS REQUEST

Defendant Surgery Center of Beverly Hills, Inc. asks the Court to enter summary judgment against Plaintiff and in Defendant Surgery Center of Beverly Hills, Inc.’s favor.  Defendant Surgery Center of Beverly Hills, Inc. argues it did not breach a duty of care or cause Plaintiff’s harm based on expert’s declaration.

JUDICIAL NOTICE

The Court takes judicial notice that Defendant Surgery Center of Beverly Hills, Inc.’s address was 1125 S. Beverly Hills Drive, Suite 600, Los Angeles, CA 90035 on May 28, 2019 and July 29, 2020 as shown on California Secretary of State documents.  (See Evid. Code, § 452, subd. (c), (h).)

OBJECTIONS

Defendant Surgery Center of Beverly Hills, Inc.’s first objection is SUSTAINED. Verbickas did not declare the truth of his declaration under penalty of perjury of California’s laws.  (See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612.)

Defendant Surgery Center of Beverly Hills, Inc.’s second objection is SUSTAINED for the same reason the first objection is sustained.  (See Kulshrestha, supra, 33 Cal.4th at p. 612.)

Defendant Surgery Center of Beverly Hills, Inc.’s third objection is SUSTAINED for the same reason the first and second objections are sustained.  (See Kulshrestha, supra, 33 Cal.4th at p. 612.)

Defendant Surgery Center of Beverly Hills, Inc.’s fourth objection is SUSTAINED for the same reason the first, second, and third objections are sustained. (See Kulshrestha, supra, 33 Cal.4th at p. 612.)  Also, Dale Verbickas’ declaration regarding sales to Beverly Hills Regional Surg. is irrelevant because Plaintiff’s procedures did not occur at Beverly Hills Regional Surg.

Defendant Surgery Center of Beverly Hills, Inc.’s fifth objection is OVERRULED.

Defendant Surgery Center of Beverly Hills, Inc.’s sixth objection is SUSTAINED.  Barry Silberg has not declared that he reviewed any patient records, making his declaration regarding Plaintiff’s prescription of Silvadene cream lacking in foundation.

Defendant Surgery Center of Beverly Hills, Inc.’s seventh objection is SUSTAINED.  Barry Silberg’s declaration that Plaintiff’s burn was due to Defendant Farzadmehr’s improper use of electrocautery is speculative and lacks foundation because it is conclusory.

Defendant Surgery Center of Beverly Hills, Inc.’s eighth objection is SUSTAINED.  Barry Silberg’s declaration regarding the misapplication of a grounding pad lacks foundation because it is conclusory.

Defendant Surgery Center of Beverly Hills, Inc.’s ninth objection is SUSTAINED. Barry Silberg’s declaration regarding Defendant Farzadmehr’s breach of a duty of care lacks foundation because it is conclusory.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “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.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements of medical malpractice are: “(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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted]. “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[w]hen 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 [citations omitted]. An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

Defendant Surgery Center of Beverly Hills, Inc. submits the declaration of cosmetic surgeon Jacob Haiavy, M.D., F.A.C.S. in support of the motion for summary judgment.  Dr. Haiavy submitted his qualifications.  (Haiavy Decl., ¶ 1-2, Exh A.)  Dr. Haiavy reviewed Defendant Farzadmehr’s Curriculum Vitae and Plaintiff’s medical records from Defendant Surgery Center of Beverly Hills, Inc., Solano Plastic Surgery, Solano Sports Physical Therapy, Comprehensive Home Health Care & Hospice, the office of Barry Silberg, M.D., North Bay Center for Neuroscience, and Vaca Valley Hospital.  (Haiavy Decl., ¶ 4.)  Dr. Haiavy recited the relevant medical facts and, subsequently, opined as to the following.  (Haiavy Decl., ¶¶ 5a-5k.)

The medical records show Defendant Farzadmehr obtained Plaintiff’s informed consent to perform the planned procedures.  (Haiavy Decl., ¶ 6a.)  Defendant Farzadmehr advised Plaintiff to stop smoking prior to the procedures.  (Ibid.)  Defendant Farzadmehr properly and thoroughly documented the grounding pad burn that Plaintiff sustained intra-operatively.  (Haiavy Decl., ¶ 6b.)  Defendant Farzadmehr followed guidelines in using the grounding pad and used proper care in using the grounding pad.  (Ibid.Defendant Farzadmehr did not cause the grounding pad injury.  (Ibid.)  Defendant Farzadmehr noted that the grounding pad was secured properly, but had a defect that could not be seen that caused the burn.  (Haiavy Decl., ¶ 5b.)  Defendant Farzadmehr followed up with Plaintiff regarding the management of the burn injury and the surgical incision site.  (Haiavy Decl., ¶ 6c.)  Plaintiff’s post-operative tissue necrosis developed in the absence of Defendant Farzadmehr’s negligence.  (Ibid.)  This is because such tissue necrosis occurs in the absence of negligence and when the patient continues smoking after the operation during the initial healing phase.  (Ibid.)

The Court finds Defendant Surgery Center of Beverly Hills, Inc. has met its burden.  Importantly, Defendant Surgery Center of Beverly Hills, Inc. does not dispute Plaintiff’s allegation that Defendant Farzadmehr acted within Defendant Farzadmehr’s course and scope of employment with Defendant Surgery Center of Beverly Hills, Inc. when Plaintiff was injured.  In light of this uncontested allegation, Dr. Haiavy’s declaration shows Plaintiff’s burn injury was sustained from an unseen defect in the grounding pad, and not from Defendant Farzadmehr’s act or omission.  Moreover, Plaintiff’s post-operative tissue necrosis developed due to Plaintiff’s continued smoking as opposed to any negligence by Defendant Farzadmehr.

Plaintiff submits the declarations of Dale Verbickas and Barry Silberg, M.D., F.A.C.S.  As explained below, the Court finds these declarations do not demonstrate there is a triable issue of material fact.

California Code of Civil Procedure section 2015.5 provides the elements necessary for Mr. Verbickas’ declaration to have evidentiary value. , the declaration must include: “(1) a certification or declaration that it is ‘true under penalty of perjury,’ (2) the ‘subscri[ption]’ of the declarant, (3) a statement of the ‘date of execution,’ and (4) a statement that such certification or declaration occurs ‘under the laws of the State of California.’” (Kulshrestha, supra, 33 Cal.4th at pp. 610-611 [emphasis in original].) Importantly, “a declaration is defective under section 2015.5 absent an express facial link to California or its perjury laws.” (Id. at p. 612.) Verbickas does not declare as to the truth of his declaration under penalty of perjury of California’s laws.  Thus, his declaration is without evidentiary value.

Barry Silberg, M.D., F.A.C.S.’s brief two-page declaration is conclusory.  Dr. Silberg stated he examined Plaintiff and reviewed Mr. Verbickas’ declaration.  As explained, Mr. Verbickas’ declaration is without evidentiary value.  Dr. Silberg does not indicate that he asked Plaintiff any questions, but only that he “examined” her and took photos of Plaintiff’s burn scar.  (Silberg Decl., ¶¶ 3d-3e, 4.)  Dr. Silberg did not review Plaintiff’s allegations in the complaint, the moving papers, or any of Plaintiff’s medical records.  Dr. Silberg does not have the necessary foundation to declare that Plaintiff’s burn was a result of Defendant Farzadmehr’s improper use of electrocautery.  Moreover, Dr. Silberg does not explain how he has the necessary knowledge to declare that a defective grounding pad could not cause Plaintiff’s burns. Similarly, Dr. Silberg does not lay an appropriate foundation to declare that the proper application of the grounding pad would be on Plaintiff’s thigh.  Mr. Verbickas may know enough about grounding pads to declare to their proper placement considering his extensive experience with the engineering of grounding pads, assuming his declaration constitutes competent evidence.  However, it does not, and, thus, Dr. Silberg’s reliance on Mr. Verbickas’ declaration is misplaced.  Therefore, Plaintiff has not met her burden.  The motion is properly granted.

CONCLUSION

The motion is GRANTED.

Defendant Surgery Center of Beverly Hills, Inc. is ordered to give notice of this ruling.

Defendant Surgery Center of Beverly Hills, Inc. is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC649192    Hearing Date: March 29, 2021    Dept: 28

Motion for Summary Judgment

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 6, 2017, Plaintiff Maria L. Arteaga (“Plaintiff”) filed a complaint against Defendants Afshin Farzadmehr aka Sean F. Mehr (“Defendant Farzadmehr”) and Surgery Center of Beverly Hills, Inc. in the complaint arising from a deficient surgery on February 8, 2016 and deficient consultations that occurred afterwards.

On October 9, 2020, Defendant Farzadmehr filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

Trial is set for May 18, 2021.

PARTYS REQUEST

Defendant Farzadmehr asks the Court to enter summary judgment against Plaintiff and in Defendant Farzadmehr’s favor based on an expert’s opinion that Defendant Farzadmehr complied with the relevant standard of care and did not cause Plaintiff’s harm.

JUDICIAL NOTICE

The Court takes judicial notice that Defendant Surgery Center of Beverly Hills, Inc.’s address was 1125 S. Beverly Hills Drive, Suite 600, Los Angeles, CA 90035 on May 28, 2019 and July 29, 2020 as shown on California Secretary of State documents.  (See Evid. Code, § 452, subd. (c)(h).)

OBJECTIONS

Defendant Farzadmehr’s first objection is SUSTAINED. Verbickas did not declare the truth of his declaration under penalty of perjury of California’s laws.  (See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612.)

Defendant Farzadmehr’s second objection is SUSTAINED for the same reason the first objection is sustained.  (See Kulshrestha, supra, 33 Cal.4th at p. 612.)

Defendant Farzadmehr’s third objection is SUSTAINED for the same reason the first and second objections are sustained.  (See Kulshrestha, supra, 33 Cal.4th at p. 612.)

Defendant Farzadmehr’s fourth objection is SUSTAINED for the same reason the first, second, and third objections are sustained. (See Kulshrestha, supra, 33 Cal.4th at p. 612.) Dale Verbickas’ declaration regarding sales to Beverly Hills Regional Surg. is irrelevant because Plaintiff’s procedures did not occur at Beverly Hills Regional Surg.

Defendant Farzadmehr’s fifth objection is OVERRULED.

Defendant Farzadmehr’s sixth objection is SUSTAINED.  Barry Silberg has not declared that he reviewed any patient records, making his declaration regarding Plaintiff’s prescription of Silvadene cream lacking in foundation.

Defendant Farzadmehr’s seventh objection is SUSTAINED.  Barry Silberg’s declaration that Plaintiff’s burn was due to Defendant Farzadmehr’s improper use of electrocautery is speculative and lacks foundation because it is conclusory.

Defendant Farzadmehr’s eighth objection is SUSTAINED.  Barry Silberg’s declaration regarding the misapplication of a grounding pad lacks foundation because it is conclusory.

Defendant Farzadmehr’s ninth objection is SUSTAINED. Barry Silberg’s declaration regarding Defendant Farzadmehr’s breach of a duty of care lacks foundation because it is conclusory.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “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.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements of medical malpractice are: “(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.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702 [citations omitted]. “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.)

Thus, in a medical malpractice case, “[w]hen 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 [citations omitted]. An expert declaration, if uncontradicted, is conclusive proof as to the prevailing standard of care and the propriety of the particular conduct of the health care provider. (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999.)

Defendant Farzadmehr submits the declaration of cosmetic surgeon Jacob Haiavy, M.D., F.A.C.S. in support of the motion for summary judgment.  Dr. Haiavy submitted his qualifications.  (Haiavy Decl., ¶ 1-2, Exh A.)  Dr. Haiavy reviewed Defendant Farzadmehr’s Curriculum Vitae and Plaintiff’s medical records from Surgery Center of Beverly Hills, Inc., Solano Plastic Surgery, Solano Sports Physical Therapy, Comprehensive Home Health Care & Hospice, the office of Barry Silberg, M.D., North Bay Center for Neuroscience, and Vaca Valley Hospital.  (Haiavy Decl., ¶ 4.)  Dr. Haiavy recited the relevant medical facts and, subsequently, opined as to the following.  (Haiavy Decl., ¶¶ 5a-5k.)

The medical records show Defendant Farzadmehr obtained Plaintiff’s informed consent to perform the planned procedures.  (Haiavy Decl., ¶ 6a.)  Defendant Farzadmehr advised Plaintiff to stop smoking prior to the procedures.  (Ibid.Defendant Farzadmehr properly and thoroughly documented the grounding pad burn that Plaintiff sustained intra-operatively.  (Haiavy Decl., ¶ 6b.)  Defendant Farzadmehr followed guidelines in using the grounding pad and used proper care in using the grounding pad.  (Ibid.Defendant Farzadmehr did not cause the grounding pad injury.  (Ibid.Defendant Farzadmehr noted that the grounding pad was secured properly, but had a defect that could not be seen that caused the burn.  (Haiavy Decl., ¶ 5b.)  Defendant Farzadmehr followed up with Plaintiff regarding the management of the burn injury and the surgical incision site.  (Haiavy Decl., ¶ 6c.)  Plaintiff’s post-operative tissue necrosis developed in the absence of Defendant Farzadmehr’s negligence.  (Ibid.This is because such tissue necrosis occurs in the absence of negligence and when the patient continues smoking after the operation during the initial healing phase.  (Ibid.)

The Court finds Defendant Farzadmehr has met Defendant Farzadmehr’s burden.  Dr. Haiavy’s declaration shows Plaintiff’s burn injury was sustained from an unseen defect in the grounding pad, and not from Defendant Farzadmehr’s act or omission.  Moreover, Plaintiff’s post-operative tissue necrosis developed due to Plaintiff’s continued smoking as opposed to any  negligence Farzadmehr.

Plaintiff submits the declarations of Dale Verbickas and Barry Silberg, M.D., F.A.C.S.

California Code of Civil Procedure section 2015.5 provides the elements necessary for Mr. Verbickas’ declaration to have evidentiary value. , the declaration must include: “(1) a certification or declaration that it is ‘true under penalty of perjury,’ (2) the ‘subscri[ption]’ of the declarant, (3) a statement of the ‘date of execution,’ and (4) a statement that such certification or declaration occurs ‘under the laws of the State of California.’” (Kulshrestha, supra, 33 Cal.4th at pp. 610-611 [emphasis in original].) Importantly, “a declaration is defective under section 2015.5 absent an express facial link to California or its perjury laws.” (Id. at p. 612.) Verbickas does not declare as to the truth of his declaration under penalty of perjury of California’s laws.  Thus, his declaration is without evidentiary value.

Barry Silberg, M.D., F.A.C.S.’s brief two-page declaration is conclusory.  Dr. Silberg stated he examined Plaintiff and reviewed Mr. Verbickas’ declaration.  As explained, Mr. Verbickas’ declaration is without evidentiary value.  Dr. Silberg does not indicate that he asked Plaintiff any questions, but only that he “examined” her and took photos of Plaintiff’s burn scar.  (Silberg Decl., ¶¶ 3d-3e, 4.)  Dr. Silberg did not review Plaintiff’s allegations in the complaint, the moving papers, or any of Plaintiff’s medical records.  Dr. Silberg does not have the necessary foundation to declare that Plaintiff’s burn was a result of Defendant Farzadmehr’s improper use of electrocautery.  Moreover, Dr. Silberg does not explain how he has the necessary knowledge to declare that a defective grounding pad could not cause Plaintiff’s burns. Similarly, Dr. Silberg does not lay an appropriate foundation to declare that the proper application of the grounding pad would be on Plaintiff’s thigh.  Mr. Verbickas may know enough about grounding pads to declare to their proper placement considering his extensive experience with the engineering of grounding pads, assuming his declaration constitutes competent evidence.  However, it does not, and, thus, Dr. Silberg’s reliance on Mr. Verbickas’ declaration is misplaced.  Therefore, Plaintiff has not met her burden.  The motion is properly granted.

CONCLUSION

The motion is GRANTED.

Defendant Farzadmehr is ordered to give notice of this ruling.

Defendant Farzadmehr is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC649192    Hearing Date: September 14, 2020    Dept: 28

Applications to permit John G. Pwers and Erica L. Visokey to appear as counsel Pro Hac Vice are continued to 9-22-20 at 8:30 a.m. in Department 28, Spring Street Courthouse.Department 28 is closed for motions on 9-14-20.

Case Number: BC649192    Hearing Date: July 16, 2020    Dept: 28

Application for Admission Pro Hac Vice (x2)

Having considered the moving papers, the Court rules as follows.  No opposing papers were filed.

BACKGROUND

On February 6, 2017, Plaintiff Maria L. Arteaga (“Plaintiff”) filed a complaint against Defendants Afshin Farzadmehr aka Sean F. Mehr and Surgery Center of Beverly Hills, Inc.  Plaintiff alleges medical malpractice in the complaint for a deficient care rendered on and after February 8, 2016 in relation to a cosmetic surgery.

On January 27, 2020, Plaintiff filed an amendment to her complaint renaming Doe 1 as Defendant Conmed Corporation.

On April 8, 2020, Defendant Conmed Corporation filed applications to admit Erica L. Visokey and John G. Powers as counsel pro hac vice.

On April 16, 2020, the Court continued the hearings on the motions for admission pro hac vice to July 16, 2020.

Trial is set for November 17, 2020.

PARTY’S REQUEST

Erica L. Visokey and John G. Powers seek to be admitted before the Court pro hac vice, in order to represent Defendant Conmed Corporation.

LEGAL STANDARD

California Rule of Court, rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California.

The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action. (Cal. Rules of Court, rule 9.40, subd. (d).)

DISCUSSION

The Court finds that Erica L. Visokey’s and John G. Powers applications almost comply with the requirements of Rule 9.40. Erica L. Visokey and John G. Powers that each had served copies of their applications and the notices of hearing on the State Bar (the declarations indicate the applications will have been served by the time of the hearing). Defendant Conmed

CONCLUSION

The hearings on the applications are CONTINUED to September 14, 2020 at 1:30 p.m. in Department 28 of Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Erica L. Visokey and John G. Powers are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.

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