DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al.

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Tentative Ruling

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendants and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Aly Elsayed Dental Corporation dba Horus Dental (“Horus Dental”) and Aly Elsayed’s (“Elsayed”) (collectively, “Defendants”) motion for summary judgment, or in the alternative, summary adjudication is ruled upon as follows.

Plaintiff’s request for judicial notice is granted. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Both parties are admonished for failing to comply with California Rules of Court, rule 3.1110(f)(4), which provides, “Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format, and/or the imposition of sanctions.

This is a sexual assault action. Plaintiff alleges that from 2018 to 2023 she sought dental treatment from Elsayed at Horus Dental. Plaintiff alleges:

On or around April 26, 2023, Plaintiff went to HORUS DENTAL for a dental implant with ELSAYED. At this appointment Plaintiff was sexually assaulted, abused, and harassed by ELSAYED. This abuse, and the damage suffered by Plaintiff, includes:

a. [d]uring multiple appointments prior to April 26, 2023, ELSAYED rubbing and pinching the Plaintiff’s breasts. During the appointment on April 26, 2023, ELSAYED began rubbing Plaintiff’s lips with his hands. The Plaintiff eventually left the appointment in the evening when the office appeared to be closing for the day. Approximately five minutes after leaving, the Plaintiff received a call from an unknown number. The individual identified himself as ELSAYED and he asked the Plaintiff to

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

come back to the office under the guise that further dental treatment was necessary. After telling the Plaintiff she could not come back the following day, the Plaintiff returned to the office. When ELSAYED greeted her at the office, ELSAYED told the Plaintiff that she looked “cute.” ELSAYED proceeded to place the Plaintiff in a dental chair and began rubbing her gums and lips with his hands. ELSAYED then proceeded to massage the Plaintiff’s right breast with his right hand. ELSAYED then pressed his erect penis against the Plaintiff’s right arm.

(First Amended Complaint (“FAC”), ¶ 15.)

Plaintiff alleges that “HORUS DENTAL is the corporation established by ELSAYED as the primary business entity and the entity by through which ELSAYED provides his dental services. PLAINTIFF is further informed and believes, and thereon alleges, that ELSAYED is the president/owner and a representative/agent of HORUS DENTAL at all times relevant herein, and that in that capacity, HORUS DENTAL had the ability to exercise control of ELSAYED’s business and medical services.” (FAC, ¶ 6.)

Plaintiff also alleges that Horus Dental and Elsayed were the successors-in-interest and/or alter egos of each other. (FAC, ¶ 11.)

The FAC asserts causes of action for: (1) intentional infliction of emotional distress, (2) gender violence (against Elsayed), (3) sexual harassment (Civil Code section 51.9), (4) sexual assault (against Elsayed), (5) sexual battery (Civil Code section 1708.5) (against Elsayed), (6) unfair business practices, (7) constructive fraud, (8) negligence, (9) negligent supervision (against Horus), (10) negligent hiring and retention (against Horus), and (11) negligent failure to warn, train or protect (against Horus).

Defendants move for summary judgment, or in the alternative, summary adjudication, of the causes of action for:

 intentional infliction of emotional distress,  unfair business practices,  constructive fraud,  negligence,  negligent supervision (against Horus),  negligent hiring and retention (against Horus), and  negligent failure to warn, train or protect (against Horus)

Defendants also move for summary adjudication of the claim for punitive damages.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

Defendants move for summary judgment, or in the alternative, summary adjudication, on the ground that “Plaintiff cannot establish, and there is no triable issue of material fact, that Defendants had prior notice or knowledge of any alleged misconduct by Dr. Aly Elsayed prior to the alleged incident on April 26, 2023, and therefore cannot establish the essential elements of these claims.” (Motion, 2:11-14 (emphasis added).)

Trial is currently scheduled for March 16, 2027.

Legal Standard

In evaluating a motion for summary judgment and/or summary adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v.

Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].)

Once the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or affirmative defense claimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that the California Rule of Court, Rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, an affirmative defense, a claim for punitive damages, or a question of duty. Code of Civil Procedure §437c, subdivision (f)(1) provides in its entirety:

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, as specified in Section 3294 of the Civil Code, 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.

The Court reminds the parties of the “Golden Rule” of summary judgment or adjudication: “If it is not set forth in the separate statement, it does not exist.” (See Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 [italics in original].) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

Summary Judgment

Defendants’ motion for summary judgment is DENIED because their motion fails to address the causes of action for gender violence (against Elsayed), sexual harassment (Civil Code section 51.9), sexual assault (against Elsayed), and sexual battery (Civil Code section 1708.5) (against Elsayed). Since the motion cannot dispose of all causes of action in the FAC, summary judgment must be denied.

Summary Adjudication

Defendants submit the following 18 UMFs in support of their motion:

1. Plaintiff was a patient of Horus Dental from approximately 2017/2018 until April 26, 2023.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

2. Plaintiff alleges misconduct occurred on April 26, 2023.

3. Plaintiff testified she had no knowledge of any prior incidents or complaints involving Elsayed.

4. Plaintiff identified no prior complaints, investigations, or disciplinary actions against Elsayed.

5. No patient has ever made a complaint against Elsayed.

6. Plaintiff never reported any alleged misconduct to Horus Dental management or staff.

7. Plaintiff’s treatment ended after April 26, 2023, and she made no contemporaneous report.

8. The Dental Board closed the investigation, and no action was taken.

9. Plaintiff never informed any Horus Dental staff or managers of the alleged misconduct until months later.

10. Horus Dental management had no notice or knowledge of any alleged misconduct and did not ratify any such conduct.

11. Plaintiff’s allegations concern personal acts outside the scope of employment.

12. RDA Halyna Nestor testified she never received or heard any patient complaints regarding Elsayed or Horus Dental staff.

13. Evangelina Ilin testified she never witnessed or heard any inappropriate behavior by Elsayed and confirmed that a chaperone was always present.

14. Office Manager Ada Kaspakova testified no complaints or disciplinary reports were made to management prior to April 26, 2023.

15. RDA Abir Mohamed testified that all patient interactions occurred with a dental assistant present, consistent with office chaperone policy.

16. All staff confirmed Horus Dental maintained an active chaperone policy and mandatory professional conduct training.

17. The California Dental Board investigated and found no evidence of misconduct or rule violations.

18. Plaintiff confirmed she never observed or reported any misconduct prior to the alleged incident.[1]

The Court notes that Defendants rely on the same 17 UMFs in support of each cause of action and the claim for punitive damages. Thus, Defendants’ failure to satisfy their initial burden with respect to any of the 17 UMFs, or the existence of a single triable issue of material fact as to any of the 17 UMFs, would result in the denial of all causes of action and claim for punitive damages for which summary adjudication is sought.

The Court finds that Defendants fail to satisfy their initial burden.

Again, Defendants move for summary judgment, or in the alternative, summary adjudication on the ground that “Plaintiff cannot establish, and there is no triable issue of material fact, that Defendants had prior notice or knowledge of any alleged misconduct by Dr. Aly Elsayed prior

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

to the alleged incident on April 26, 2023, and therefore cannot establish the essential elements of these claims.” (Motion, 2:11-14 (emphasis added).) This means that Defendants must demonstrate that no triable issue of material fact exists that neither Horus Dental nor Elsayed had prior notice or knowledge of any alleged misconduct by Elsayed prior to the alleged incident on April 26, 2023. Defendants’ UMFs and the argument in their memorandum of points and authorities, however, focus solely on Horus Dental’s prior notice or knowledge. There are no UMFs or arguments regarding Elsayed’s prior notice or knowledge.

Defendants also fail to provide evidentiary support for UMFs 7, 10, 13 and 14.

UMF 7 states, “Plaintiff’s treatment ended after April 26, 2023, and she made no contemporaneous report.” Defendants cite to Plaintiff’s deposition, pages 24-25. (Declaration of Jackie Sueyres (“Sueyres Decl.”), Ex. A.) The testimony concerns the treatment Elsayed provided on April 26, 2023, and Elsayed calling Plaintiff back to the office to confirm the color for the crown.

UMF 10 states, “Horus Dental management had no notice or knowledge of any alleged misconduct and did not ratify any such conduct.” Defendants cite to “Kaspakova Depo 62-63 pp 7-11 Exh. H.” (UMF 10.) To the extent Defendants rely on page 62-63 of Ms. Kaspakova’s deposition transcript, those pages refer to a chaperone policy, security footage, and the IT contact. To the extent Defendants rely on page 7 of Ms. Kaspakova’s deposition transcript, Defendants have not included that page with the exhibit. To the extent Defendants rely on pages 8-11 of Ms. Kaspakova’s deposition transcript the testimony concerns the preliminary admonitions and foundational questions.

UMF 13 states, “Evangelina Ilin testified she never witnessed or heard any inappropriate behavior by Dr. Aly and confirmed that a chaperone was always present.” Defendants cite to Ms. Ilin’s deposition testimony pages 8-14. (Sueyres Decl., Ex. G.) The testimony concerns the preliminary admonitions and foundational questions, and Horus Dental’s procedures for handling complaints.

UMF 14 states, “Office Manager Ada Kaspakova testified no complaints or disciplinary reports were made to management prior to April 26, 2023.” Defendants cite to Ms. Kaspakova’s deposition transcript pages 8-12. (Sueyres Decl., Ex. H.) Again, the testimony concerns the preliminary admonitions and foundational questions.

As a result, Defendants fail to satisfy their initial burden. The burden does not shift to Plaintiff to demonstrate a triable issue of material fact, and the motion for summary adjudication is DENIED.

Even if Defendants satisfied their initial burden, Plaintiff has demonstrated a triable issue of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

material fact regarding chaperones. While Defendants suggest that a chaperone is always present (UMFs 13 and 15), Plaintiff submits evidence that no chaperones were present during Plaintiff’s appointment with Elsayed on April 26, 2023. (Plaintiff’s response to UMFs 13 and 15.)

Since Defendants rely on UMFs 7, 10, 13, 14 and 15 in support of each cause of action and the claim for punitive damages, the motion for summary adjudication must be denied as each cause of action and claim for punitive damages.

Defendants’ motion for summary adjudication is DENIED.

This minute order is effective immediately. Plaintiff shall prepare a formal order pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 437c(g).

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Department 16C Oral Argument Request Line at (916) 874-1475 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 16C Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16030877014 and the Zoom Meeting ID is 160 3087 7014. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed on the Court Reporter Services webpage available on the Sacramento Superior Court website at

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008707: DOE vs ALY ELSAYED DENTAL CORPORATION, A CALIFORNIA CORPORATION, et al. 09/01/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16C

https://saccourt.ca.gov/general-information/court-reporter-services-transcripts. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://saccourt.ca.gov/home/showpublisheddocument/227/639084034465370000.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

[1] With respect to the negligence cause of action, Defendants’ separate statement does not

include UMF 18.