Noroski vs. Sienna Palmer Ogbevoen, D.D.S., Inc.

15 24-01435993 Motion for Summary Judgment and/or Adjudication

Noroski vs. Sienna Plaintiff Laura A. Noroski’s Motion for Summary Adjudication is Palmer Ogbevoen, DENIED. D.D.S., Inc. Defendants’ objections (ROA 323) are overruled except for Exhibit 9 and 10 (DMG America information on Icon treatment) which are sustained based on hearsay and lack of foundation.

Plaintiff’s objections (ROA 334) are overruled. Plaintiff’s objections consist of extensive legal argument which should have been included in her points and authorities, rather than written objections formatted pursuant to California Rules of Court, Rule 3.1354.

Plaintiff’s request for judicial notice of Plaintiff’s First Amended Complaint (FAC) is denied as unnecessary. The Court may consider the pleadings in this lawsuit without judicial notice.

Plaintiff moves for summary adjudication as to the following issues:

Issues 1-5: Defendants committed false advertising by (1) displaying the Jane B., Pam W., and Christin P. patient testimonials on Palm Dentistry’s website, (2) stating “locally owned and operated since 1984” on their website, and (3) stating “Mission Viejo proud since 1984.”

Issues 6-7: Defendants committed medical battery by (1) performing a substantially different treatment than a “minimally invasive” “no drilling” ICON treatment, and (2) by removing pre-existing bonding affixed to Plaintiff’s tooth No. 10 against Plaintiff’s instructions.

Legal Standard:

Code of Civil Procedure section 437c(f)(1) states, “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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, 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.”

Section 437c(c) provides, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences

reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

Finally, section 437c(p) states,

“(p) For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met that party's burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or crossdefendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the 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 or a defense thereto.”

“A plaintiff can obtain summary adjudication of a cause of action only by proving ‘each element of the cause of action entitling the party to judgment on that cause of action.’ As damages are an element of a breach of contract cause of action (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229, 166 Cal.Rptr.3d 864), a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

False Advertising:

Plaintiff seeks summary adjudication as to her ninth cause of action for false advertising in violation of Business & Professions Code section 17500.

Section 17500 prohibits untrue or misleading advertising. It “broadly prohibit[s] false or misleading advertising, declaring that it is unlawful for any person or business to make or distribute any statement to induce the public to enter into a transaction ‘which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” (People v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 317.) “FAL actions may be brought by the Attorney General, designated public prosecutors, or ‘any person who has suffered injury in fact and has lost money or property’ as a result of a violation of the FAL. (§ 17535.)

The trial court may enjoin FAL violators. (§ 17535.) Similar to the UCL, the Attorney General and other public prosecutors may seek civil penalties not to exceed $2,500 for each violation of the FAL. (§ 17536, subd. (a).)” (Id. at p. 318)

Plaintiff seeks restitution of the money she paid to Defendants and equitable relief including issuance of an injunction for this violation

prohibiting Defendants’ false advertising and requiring Defendants to notify current and former patients of the false advertising and make corrective disclosures. (FAC, ¶¶ 127, 128.)

To prevail under a UCL false advertising claim, the plaintiff “must show that the misrepresentation was an immediate cause of the injuryproducing conduct, the plaintiff need not demonstrate it was the only cause.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 326; see People v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 326–327.) “[A] presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material. A misrepresentation is judged to be ‘material’ if ‘a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question,’ and as such materiality is generally a question of fact unless the ‘fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.” (In re Tobacco II Cases, supra, 46 Cal.4th at 327.)

Here, Plaintiff alleges Defendants made untrue or misleading statements on their website. (FAC, ¶¶ 117-127.) Plaintiff alleges she viewed Defendants’ website in 2023 and relied on Defendants’ advertising when selecting Dr. Palmer as her new dentist. (Id.)

In her separate statement of undisputed material facts (UMFs), Plaintiff identifies five specific statements on Defendants’ website as fraudulent.

First, Plaintiff identifies a patient testimonial from “Jane B.,” stating they had been “going to Dr. Palmer for over 20 years,” and highly recommend her, but Plaintiff asserts the original patient testimonial said they had been going to “Dr. Schaub,” not Dr. Palmer, for 20 years. (UMFs 1-4.)

Defendants do not dispute the contents of the Jane B. testimonial or the inaccuracy of the quoted material as it pertains to Dr. Palmer. Defendant Palmer declares Defendants’ website is managed by a website manager, TNT Dental, which apparently changed the name of the dentist referenced in patient testimonials without Defendant’s knowledge. (¶¶ 14-15.)

Plaintiff states she read the testimonial before her first appointment. (UMF 8.) Plaintiff declares she would not have made an appointment with Defendants if she know that they had replaced “Dr. Schaub” with “Dr. Palmer” in the testimonial.

However, Defendant disputes Plaintiff relied on the testimonial. Defendant asserts there is a triable issue as to materiality or reliance because Plaintiff was referred to the office by her mother. (Response to UMF 8.) Defendant Palmer declares Plaintiff “had been referred by her mother” and during the consultation Plaintiff never mentioned reviewing the website. (Palmer Decl., ¶¶ 6, 12-15.) Moreover, Defendants point out that Defendant Palmer openly displayed her diploma from 2015 on

the wall of her office, and she was 34 years old at the time of her appointment with Plaintiff. (Palmer Decl., ¶¶ 7, 11, 20.) Therefore, Defendants argue, it was unlikely Plaintiff actually believed Defendant Palmer had been treating patients for 20 years as stated in the Jane B. testimonial.

Plaintiff has shown the Jane B. testimonial was untrue because the testimonial was modified to replace “Dr. Schaub” with “Dr. Palmer.” However, based on the foregoing evidence, Defendants have demonstrated a dispute as to materiality, which “is generally a question of fact.” (In re Tobacco II Cases, supra, 46 Cal.4th at 327.) Therefore, the motion is denied as to Issue No.

1.

For the same reasons, the motion is denied as to Issue No. 2-3 which are related to other patient testimonials. Plaintiff similarly contends that website testimonials by patients “Pam W.” and “Christin P.” were altered by replacing “Dr. Schaub” with “Dr. Palmer” on Defendants’ website.

Even assuming such testimonials constituted false advertising, Defendants have demonstrated a dispute of fact as to materiality for the reasons stated above. Therefore, the motion is denied as to Issues 2 and 3.

Issues 4 and 5 relate to Defendants’ website statements that Defendants’ practice was locally owned and operated since 1984 and “Mission Viejo Proud Since 1984.” Plaintiff contends these statements were false because ownership of the dental practice transferred to Defendant Palmer in 2020 and operated under a new entity, “Palm Dentistry.” Defendants assert that the practice remained in the same location and kept many of the same patients as the former practice by Dr. Schaub. (Palmer Decl., ¶¶ 24-25.)

Again, as to Issues 4 and 5 there is a dispute as to materiality based on Plaintiff having been referred by her mother and the visible evidence that Defendant Palmer had only begun her dental practice recently. Moreover, whether the dental practice could reasonably be viewed as one continuous practice due to the retention of business goodwill and many customers by Dr. Palmer despite creation of a new business entity creates an additional question of fact as to Issues 4 and 5.

Medical Battery:

Plaintiff alleges Defendants committed medical battery by performing an invasive dental procedure without her consent. (FAC, ¶ 62.) Plaintiff alleges Defendants changed the shape and structure of Plaintiff’s teeth Nos. 6-11 and reshaped a tiny chip on tooth No. 10.

“A physician who performs any medical procedure without the patient's consent commits a battery irrespective of the skill or care used. A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the

consent.... For example, the patient consents to an electromyogram, a relatively uncomplicated procedure, but the doctor performs a myelogram, which involves a spinal puncture. Or, the patient consents to an operation on his right ear, but the doctor operates on the left ear. But not any deviation from consented-to medical treatment will sustain a medical battery claim—rather, the treatment given, or procedure performed, must be substantially different than that for which informed consent was given. Whether a treatment or procedure is ‘substantially different’ from that for which consent has been given, may, in the absence of any definitive case law, be a factual issue involving expert testimony.” (Doe v. Kachru (2025) 115 Cal.App.5th 175, 187–188 [cleaned up].)

In the motion, Plaintiff first contends medical battery occurred when Defendants performed a “substantially different treatment than a ‘minimally invasive,’ ‘no drilling’ icon treatment.” (Issue 6.) Second, Plaintiff contends “Defendants committed medical battery by removing preexisting bonding affixed to Plaintiff Noroski’s tooth no. 10, against her express instructions.”

Defendants respond that the treatment was at most “over-performed,” rather than a “substantially different treatment than that to which the patient consented” which could constitute medical battery.

Plaintiff’s expert Dr. Grossman opines that Plaintiff’s ongoing teeth sensitivity was caused by “a combination of over acid etching and/or the overly aggressive use of a drill of some type.” (Plaintiff’s Ex. F, ¶¶ 13, 14.) However, Defendant Palmer declares she used a flat-headed “Shofu polishing disk” during the Icon treatment of Plaintiff. (¶¶ 21-23.) Therefore, Defendants dispute Dr. Grossman’s opinion that a “drill” was used without Plaintiff’s consent. Rather, they contend, “At worst, Plaintiff’s evidence suggests that Dr. Palmer utilized these authorized tools to a degree that was ‘more than typical’—perhaps by leaving the etch on the teeth too long or applying more pressure with the polishing disc than anticipated.” (Opp. at p. 7.)

Defendants submit the declaration of Frederick Finzen, D.D.S. in opposition, who opines Dr. Grossman has exaggerated the damage to Plaintiff’s teeth and disagrees with Grossman’s opinions as to causation. (Defendants’ Ex. N, ¶¶ 7-25.) Finzen opines that the condition of Plaintiff’s teeth is consistent with Defendants having provided Icon treatment to which Plaintiff consented and Plaintiff’s tooth #10 was already chipped prior to treatment on 8/2/23. (¶¶ 11, 20, 22.)

Plaintiff argues Dr. Finzen’s declaration is a “sham declaration” because it contradicts Defendants’ prior responses to requests for admission and the opinions of Defendants’ other expert, Dr. Exler.

“The sham declaration doctrine comes into play when a plaintiff makes a clear and unequivocal admission in a deposition but, in a later declaration, contradicts that admission. In this situation, the declaration's previously contradicted assertion alone cannot establish a triable issue of

fact. This conclusion, however, follows only if there is no credible explanation for the supposed inconsistency. The doctrine does not apply when a reasonable explanation resolves the supposed discrepancy.” (Tiffany Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547.)

At this stage the Court finds the Finzen declaration sufficiently reliable to demonstrate a triable issue of fact. Defendant’s RFA answer stated she altered pre-existing bonding on Plaintiff’s teeth. (Plaintiff’s Ex. 15.) While Defendant does not directly contradict this admission in her own declaration, she presents evidence that there was no visible change or damage to the bonding and contends she only told Plaintiff “I have to take a little bit of the bonding away.” Defendant declares she noted a chipped edge of bonding, asked Plaintiff if she could repair it, and Plaintiff declined. (¶ 10.) It was included in Defendant’s proposed treatment plan. (¶ 16.) Defendant has sufficiently explained the discrepancy between the RFA responses and declarations of Defendant and Dr. Finzen for purposes of this motion.

Moreover, although Plaintiff has not had the opportunity to take Dr. Finzen’s declaration she fails to show it is likely that the deposition would resolve all questions of fact raised in his declaration.

Defendants have demonstrated triable issues of material fact as to this claim, including whether Plaintiff’s alleged damages were due to a “substantially different treatment” than Plaintiff consented to versus a negligently-performed treatment, and causation and the extent of damage to Plaintiff’s teeth. Therefore, the motion is denied as to Issues 6 and 7. 17 24-01397948 Motion for Discovery

Sanchez vs. Namhy Plaintiff Cristina Martinez Sanchez’s motion to compel further responses to requests for production of documents, set one, from Defendant Vishramal Gunasekara, as Trustee of the Vishramal & Manil Gunasekara Family Trust, is CONTINUED to ______________. All parties and/or counsel are ORDERED to appear in person; no Zoom appearances will be allowed.

As an initial matter, the Court finds the motion is timely. The parties agreed to extend the motion deadline to 11/23/25, which was a Sunday. (McElfish Decl., Ex. D.) When the last day to perform an act falls on a Sunday, “the time limit is extended to the next court day closer to trial.” (Code Civ. Proc., § 2016.060.) Plaintiff’s counsel acknowledged this consequence in an email on 11/21/25. (See McElfish Decl., Ex. D.)

The parties/counsel have not engaged in sufficient attempts to meet and confer. (See Code Civ. Proc., § 2016.040; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293 [Discovery Act requires moving party to declare he or she has made a serious attempt to obtain an informal resolution of each issue; rule designed to encourage parties to work out their differences informally to avoid necessity for formal order, which lessens burden on court and reduces unnecessary expenditure of