Motion for Summary Judgment and/or Adjudication
that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
A cause of action has no merit if one of the elements of the cause of action cannot be separately established. (Code Civ. Proc., § 437c, subd. (o)(1).) Consequently, a defendant who establishes that an element cannot be established, has met its moving burden on a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (p)(2).) Thereafter, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)
“Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination.” (Code Civ. Proc., § 437c, subd. (g).) “The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” (Ibid.) “The court shall record its determination by court reporter or written order.” (Ibid.)
“[I]n ‘ “any medical malpractice action, the plaintiff must establish: ‘(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.’ ” ’ ” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)
In a medical malpractice action, it has consistently been held that “a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (
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For medical malpractice claims, “the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. [Citation.] ‘ “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. 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.” ’ ” (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123.)
Defendants’ Initial Burden
In seeking summary judgment, Defendants offer the declaration of Nicholas Elias Rose, M.D., FAAOS, FACS.
Dr. Rose is licensed in California, board-certified in orthopedic surgery and surgery of the hand, completed a fellowship in upper-extremity and microvascular surgery, and has practiced as an orthopedic specialist since 1997. (Rose Decl., ¶¶ 1-2.) He states that he is familiar with the standards of care applicable to orthopedic surgeons such as Defendant Youderian and orthopedic physician assistants such as Defendant Icasas in treating patients such as Plaintiff Ardakani in Orange County in 2023. (Rose Decl., ¶ 4.)
Dr. Rose identifies the materials he reviewed, including the complaint, discovery responses, Plaintiff Ardakani’s deposition, and records from the relevant surgical, orthopedic, hospital, neurologic, and imaging providers. (Rose Decl., ¶ 5.) He then summarizes the original humeral fractures, the preoperative consultation, the March 28, 2023 surgery, the nail becoming stuck during placement, the resulting distal fracture, the osteotomy and replacement nail, the postoperative radial-nerve palsy, and the subsequent treatment and testing. (Rose Decl., ¶ 6.)
Dr. Rose opines that Defendants complied with the applicable standards of care. (Rose Decl., ¶ 9.) As to Defendant Youderian, Dr. Rose states that open reduction and internal fixation with an intramedullary humeral nail was an appropriate treatment for the two humeral fractures; Dr. Youderian used appropriate surgical technique; the radial nerve was identified, palpated, and protected during reaming and nail passage; and the stuck nail and iatrogenic fracture were recognized procedural complications that were appropriately managed. (Rose Decl., ¶¶ 10–12.) As to Defendant Icasas, Dr. Rose opines that his intraoperative assistance complied with the standard applicable to a physician assistant assisting with this procedure. (Rose Decl., ¶ 13.) Dr. Rose also opines that the postoperative observation, follow-up, and timing of nerve testing were appropriate. (Rose Decl., ¶ 14.)
As to causation, Dr. Rose opines to a reasonable medical probability that nothing Defendants did or failed to do in violation of the standard of care caused or contributed to Plaintiffs’ claimed injuries. (Rose Decl., ¶ 15.) He explains that radial motor and sensory nerve injuries are known risks of humeral-shaft ORIF and may occur in the absence of negligence. (Rose Decl., ¶ 16.)
Defendants therefore satisfy their initial burden as to both moving defendants. The burden shifts to Plaintiffs to demonstrate a triable issue of material fact.
Plaintiffs’ Opposition re: Defendant Youderian
In opposition, Plaintiffs offer the declaration of John G. Stark, M.D., P.A. Dr. Stark has been licensed to practice medicine since 1977, has been board-certified in orthopedic surgery since 1984, and has substantial orthopedic surgical experience. (Stark Decl., ¶ 1.) He reviewed the pertinent medical records, imaging, operative materials, deposition testimony, and Dr. Rose’s declaration, and personally examined Plaintiff Ardakani. (Stark Decl., ¶¶ 2–6.)
Dr. Stark opines that Defendant Youderian fell below the standard of care during the March 28, 2023 surgery. (Stark Decl., ¶¶ 7, 11(f), 12.) In support, he discusses the operative course documented in the records. (Stark Decl., ¶¶ 7, 11(c)–(f), 12(c)–(f).) Dr. Stark further opines, to a reasonable degree of medical probability, that Defendant Youderian’s surgical management fell below the standard of care and was a substantial factor in causing Plaintiff Ardakani’s neurologic and functional deficits. (Stark Decl., ¶ 12.)
Dr. Stark’s opinions directly conflict with those of Dr. Rose. Plaintiffs have presented competent conflicting expert evidence creating triable issues of material fact as to breach and causation.
Defendants argue that Dr. Stark’s criticism of the decision to use an intramedullary nail reflects only a difference of medical opinion as to the available treatment options. However, Dr. Stark’s opinions are not limited to procedure selection. He also challenges the manner in which the procedure was performed. (Stark Decl., ¶¶ 7, 11(c)–(f), 12.)
Defendants also argue that Dr. Stark identifies only possible mechanisms of injury because he cannot pinpoint when the radial nerve was damaged. Although Dr. Stark discusses several possible mechanisms, he bases those opinions on events documented in the operative report and ultimately opines, to a reasonable degree of medical probability, that Defendant Youderian’s surgical management fell below the standard of care and was a substantial factor in causing Plaintiff Ardakani’s deficits. (Stark Decl., ¶¶ 11(c)–(f), 12(c)–(f).) His inability to identify the precise moment of injury does not negate that opinion. Dr. Stark’s causation opinion is also supported by the documented chronology. (Stark Decl., ¶¶ 6–11.)
Accordingly, the motion for summary judgment is DENIED as to Defendant Youderian.
Plaintiffs’ Opposition re: Defendant Icasas
Dr. Stark states generally that, based on his education, training, and experience, he is familiar with the standards of care applicable to “other non-physician medical personnel” providing orthopedic care. (Stark Decl., ¶ 3.) In discussing the reaming process, he states that “[t]here is no satisfactory way to stabilize” the fragment and that “[t]he assistant will not have a way to grip it,” even with an attempt. (Stark Decl., ¶ 12(d).)
Plaintiffs also rely on Defendant Icasas’s testimony that he assisted by stabilizing the arm, providing counter-traction and support, and holding the elbow. He also could not recall whether he was responsible for retracting or protecting the radial nerve or whether he personally palpated the nerve. They argue that this testimony, considered with Dr. Stark’s opinions regarding inadequate nerve protection, creates a triable issue as to Defendant Icasas’s intraoperative care. However, this testimony does not create a triable issue absent expert testimony that a specific act or omission by Icasas breached the physician-assistant standard of care and caused Plaintiff Ardakani’s injury.
Dr. Stark does not opine that Defendant Icasas breached the standard of care applicable to a physician assistant. Nor does he identify a negligent act or omission by Icasas, state that Icasas failed to perform an assigned duty, or connect Icasas’s conduct to the radial-nerve injury. Instead, his ultimate opinions identify only Defendant Youderian as having deviated from the standard of care and as a substantial factor in causing Plaintiff Ardakani’s injuries. (Stark Decl., ¶¶ 7, 11(f), 12.)
Accordingly, Plaintiffs have not presented conflicting expert evidence sufficient to create a triable issue as to breach or causation by Defendant Icasas.
A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.) Because Plaintiffs have not raised a triable issue on the negligence claim against Icasas, the loss-ofconsortium claim also fails as to him.
Thus, the motion for summary judgment is GRANTED as to Defendant Icasas.
Defendants to give notice.
61 Palafox vs. American Honda Motor Co., Inc.
24-01405648 Motion for Summary Judgment and/or Adjudication
The Motion for Summary Judgment or Adjudication, brought by Defendant American Honda Motor Co., Inc. is DENIED, in whole.
Initially, Plaintiff’s Objections to the Declaration of Saed Atallah, Objections Nos. 1 through 6, are SUSTAINED, for lack of personal knowledge and hearsay. The bulk of Counsel’s declaration purports to recite the repair history of the relevant vehicle and attached repair orders; however, Counsel has not established personal knowledge, as to the information stated.
Personal knowledge requires “a present recollection of an impression derived from the exercise of the witness’ own senses.” (People v. Lewis (2001) 26 Cal.4th 334, 356.) Additionally, “[i]n the absence of personal knowledge, a witness’s testimony or a declarant’s statement is no better than rank hearsay or, even worse, pure speculation.” (People v. Valencia (2006) 146 Cal.App.4th 92, 104.) “The admission of a hearsay statement not based on personal knowledge puts the factfinder in the position of determining the truth of a statement without knowledge of its source and without any means of evaluating the reliability of the source of the information.” (Ibid.)
Further, the attached repair orders have not been properly authenticated, as to Exhibits 4, 5 and 7. Although Plaintiff labelled her objection as “[m]istates the document,” she challenges the authenticity of the exhibits, in each case stating the documents are not the repair orders they purport to be. (See Objections Nos. 3, 4 and 6 [ROA No. 189].)
Proceeding to the merits, with respect to Plaintiff’s First Cause of Action, “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” (Civ. Code, § 1792.)
As relevant here, the “implied warranty of merchantability” requires a consumer good “[p]ass without objection in the trade under the contract description” and be “fit for the ordinary purposes for which such goods are used.” (Civ. Code, § 1791.1, subd. (a)(1) and (2).) However, the above requirements are “more or less a synonym” for each other and “substantially overlap.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1546 and 1550.) “Accordingly, a core test of merchantability is fitness for the ordinary purpose for which such goods are used.” (Ibid. [internal quotations omitted].)
A vehicle is “fit for the ordinary purpose” for which it is used, when it is “in safe condition and substantially free of defects.” (Isip v. Mercedes-