Filed 9/17/14 Stoddard v. Ravael CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


ALEEKA STODDARD,                                                     B252791
         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. SC117296)
         v.

SEAN S. RAVAEI,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County, Samantha
Jessner, Judge. Affirmed.

         Aleeka Stoddard, in pro. per., for Appellant.

         Susson, Parrett & Odell and Edward L. Schumann for Defendant and Respondent.



                                          _______________________
        Respondent Sean D. Ravaei, D.P.M. obtained summary judgment on a medical
negligence complaint filed by plaintiff Aleeka Stoddard. Stoddard appeals, claiming that
the summary judgment erroneously deprived her of compensation pursuant to the
Medical Injury Compensation Reform Act of 1975, Civil Code section 3333.2 (MICRA).
We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
        Stoddard filed a complaint against Ravaei and others contending, that Ravaei
negligently performed surgery on her hammertoes, resulting in damage to the look and
function of her toes. Ravaei moved for summary judgment pursuant to Code of Civil
Procedure section 437c, arguing that his treatment of Stoddard was within the standard of
care.
        In support of his motion, Ravaei submitted his own expert declaration and a
declaration from a podiatry expert, Bruce Martin Dobbs, D.P.M. Ravaei declared that he
did not act negligently and his treatment was within the applicable standard of care.
After reviewing Ravaei’s procedure notes and Stoddard’s medical records, Dobbs
declared that Ravaei’s treatment was within the standard of care. Both doctors testified
that Stoddard’s injuries were inherent risks of the surgeries.
        In opposition to Ravaei’s motion, Stoddard failed to offer an expert declaration.
Instead, Stoddard presented: 1) a letter from the Medical Board of California responding
to her complaint against Ravaei; 2) email correspondence with Ali Sadrieh, D.P.M.; 3)
medical notations from Jennifer Woo, D.P.M.; and 4) her unsigned settlement proposal.
Ravaei submitted evidentiary objections to all of Stoddard’s documents with the
exception of the letter from the Medical Board of California.
        The trial court sustained Ravaei’s evidentiary objections and entered judgment on
the motion. Stoddard appeals.




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                                       DISCUSSION

       Stoddard contends that the trial court erroneously granted summary judgment in
favor of Ravaei pursuant to Code of Civil Procedure 437c. She also seeks relief awarding
her the maximum amount of compensation for noneconomic damages pursuant to
MICRA.

I. The Trial Court Properly Granted Summary Judgment

       “‘A defendant moving for summary judgment has the burden of producing
evidence showing that one or more elements of the plaintiff’s cause of action cannot be
established, or that there is a complete defense to that cause of action. [Citation.] The
burden then shifts to the plaintiff to produce specific facts showing a triable issue as to
the cause of action or the defense.’ [Citations.].” (Multani v. Witkin & Neal (2013) 215
Cal.App.4th 1428, 1443.) A triable issue of material fact exists where “the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
       On appeal, we review an order granting summary judgment de novo. (Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) We affirm a summary judgment
where the submitted papers demonstrate that no triable issue of material fact exists and
the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c,
subd. (c).)
       In medical negligence cases, motions for summary judgment require an expert to
establish the appropriate standard of care, unless the conduct is such that a layperson
could recognize that the injury occurred due to a negligent act or omission. (Curtis v.
Santa Clara (2003) 110 Cal.App.4th 796, 800.) Evidence Code section 720, subdivision
(a) defines an expert as a person having “special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates.” In medical negligence cases, a physician defendant may be his or her own
expert. (O’Connor v. Bloomer (1981) 116 Cal.App.3d 385.)

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       When a defendant moves for summary judgment and supports his or her motion
with competent expert declarations setting forth an opinion that the challenged treatment
fell within the standard of care, the burden shifts to the plaintiff to present conflicting
expert evidence to demonstrate that a triable issue of material fact exists. (Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 123.) Here, Ravaei, as a physician defendant,
met his burden by offering both his personal expert declaration and the Dobbs
declaration. Both declarations contained the doctors’ opinions, supported by facts and
reasoning, that Ravaei complied with the standard of care.
       The burden then shifted to Stoddard to offer a contradicting expert opinion
demonstrating that Ravaei’s treatment was not within the appropriate standard of care.
(Code Civ. Proc. §437c, subd. (c).) Because Stoddard did not offer any expert testimony,
she failed to meet this burden. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123.)
       Stoddard appears to contend that the two documents she submitted, Sandrieh’s
email and Woo’s medical notations, establish Ravaei’s negligence and therefore
demonstrate the existence of a triable issue of material fact. However, the trial court
sustained Ravaei’s evidentiary objections and excluded this evidence. Because Stoddard
did not challenge this evidentiary ruling on appeal, we do not consider these documents.
(Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1196 [on appeal, evidence is
regarded as properly excluded if a plaintiff failed to challenge the trial court’s ruling
sustaining a moving defendant’s evidentiary objections]; see also Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037 [when reviewing summary judgment motions,
the court assesses “evidence set forth in the moving and opposing papers, except that to
which objections were made and sustained”].)
       Because Ravaei presented expert evidence establishing that he did not breach the
standard of care and Stoddard did not rebut his showing by demonstrating the existence
of a triable issue of material fact as to the standard of care, the trial court properly granted
summary judgment. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123.)




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II. Stoddard Is Not Entitled To Damages Pursuant To MICRA

       Stoddard argues that instead of granting the summary judgment motion in favor of
Ravaei, the court should have found Ravaei liable for her injuries and awarded her
damages. She urges this court to reverse the trial court’s decision and award her damages
pursuant to MICRA.
       We cannot grant the relief Stoddard requests. First, as we have explained, Ravaei
demonstrated that Stoddard could not establish liability in this case. Moreover, Stoddard
failed to move for summary judgment. “On appeal from summary judgment, an appellate
court lacks jurisdiction to reverse with instruction to enter judgment for the opposing
party if the latter failed to move for summary judgment.” (Dvorin v. Appellate Dept.
(1975) 15 Cal.3d 648, 650.) For these reasons, Stoddard cannot obtain either summary
judgment or an award of damages in her favor. (Ibid.)

                                     DISPOSITION
       The judgment is affirmed. Respondent shall recover his costs on appeal.




                                                 ZELON, J.



We concur:



       PERLUSS, P. J.                            SEGAL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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