Samara v. Matar
| Decision Date | 15 February 2017 |
| Docket Number | B265752 |
| Citation | 214 Cal.Rptr.3d 346,8 Cal.App.5th 796 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Rana SAMARA, Plaintiff and Appellant, v. Haitham MATAR, Defendant and Respondent. |
Curd Galindo & Smith, Alexis Galindo, Long Beach, for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, Katherine M. Harwood, Long Beach and Neil S. Tardiff, San Luis Obispo, for Defendant and Respondent.
Rana Samara sued Dr. Haitham Matar and Dr. Stephen Nahigian for dental malpractice, alleging Dr. Nahigian had negligently performed oral surgery on her and Dr. Matar, as Dr. Nahigian's principal and employer, was vicariously liable for Dr. Nahigian's negligence. The trial court granted summary judgment for Dr. Nahigian on alternative grounds—Samara's negligence claim was barred by the statute of limitations and Samara could not establish causation. We affirmed the judgment in favor of Dr. Nahigian based solely on the statute of limitations, expressly declining to reach the issue of causation. (See Samara v. Estate of Stephen Nahigian D.D.S. (Nov. 10, 2014, B248553), 2014 WL 5804196 [nonpub. opn.] (Samara I ).)
Following our decision in favor of Dr. Nahigian, Dr. Matar moved for summary judgment, arguing the question of Dr. Nahigian's liability had been conclusively determined in Dr. Nahigian's favor (issue preclusion) and Dr. Matar was thus entitled to judgment on Samara's vicarious liability claim as a matter of law. Dr. Matar also asserted Samara could not establish that he had been independently negligent or that his own acts or omissions had caused her injury.
The trial court granted Dr. Matar's motion, concluding Samara's claim for vicarious liability was barred under the doctrine of claim preclusion—a ground not raised in Dr. Matar's motion—and Samara could not show Dr. Matar independently caused her any injury. On appeal Samara contends neither claim preclusion nor issue preclusion applies in this case. We agree and reverse the judgment.
On September 6, 2011 Samara sued Drs. Nahigian and Matar for professional negligence/dental malpractice. As to Dr. Nahigian, the operative first amended complaint alleged he had negligently inserted a dental implant while performing oral surgery on Samara on August 16, 2010. As a result of Dr. Nahigian's negligence, Samara suffered permanent nerve damage. As to Dr. Matar, Samara alleged Dr. Nahigian had performed the surgery while on probation by the California Dental Board and was working under a restricted dental license as an agent/employee of Dr. Matar. Samara asserted Dr. Matar, as Dr. Nahigian's principal/employer, was vicariously liable for Dr. Nahigian's negligence. She also alleged Dr. Matar was directly negligent in failing to inform her of Dr. Nahigian's probationary status and of the risks of surgery and for failing to conduct appropriate post-operative care and treatment. Samara sought damages from Drs. Matar and Nahigian in excess of $250,000.
Dr. Nahigian moved for summary judgment on three grounds: (1) Samara could not demonstrate his conduct fell below the standard of care; (2) she could not establish his allegedly deficient performance caused her nerve damage; and (3) Samara's action was time-barred. Dr. Nahigian submitted the declaration of Dr. Bach Le, an oral surgeon, who opined "to a reasonable degree of medical probability, that no negligent act or omission on the part of Dr. Nahigian caused or contributed to" Samara's injuries.
With her opposition to Dr. Nahigian's motion Samara submitted the declaration of Dr. Gregory Doumanian, who testified Dr. Nahigian had used an implant that was too large, conduct that fell below the standard of care. He also declared Samara's nerve injury "could have been prevented had Dr. Nahigian used a shorter implant or an alternative treatment plan."
The trial court granted Dr. Nahigian's motion, ruling Samara's action against Dr. Nahigian was time-barred under the one-year-from-discovery provision of Code of Civil Procedure section 340.5.1 Alternatively, the court ruled Dr. Nahigian had met his burden to show Samara could not establish the essential element of causation. The court found Dr. Doumanian's opposition declaration did not state an opinion on causation to a "reasonable degree of medical probability" and, therefore, failed to raise a triable issue of material fact on that question. The court entered judgment in favor of Dr. Nahigian.
On appeal from the judgment in favor of Dr. Nahigian, Samara conceded the trial court had correctly ruled her action against Dr. Nahigian was time-barred. However, she requested we reverse the alternative ground on which the court had granted summary judgment—lack of causation—to preclude Dr. Matar from relying on that ruling in the action against him under the doctrine of collateral estoppel/issue preclusion. Dr. Nahigian did not file a respondent's brief. We affirmed the judgment, but expressly declined to reach the alternative ground of causation because it was not necessary to our decision. Citing case law that holds an affirmance on an alternative ground operates as collateral estoppel/issue preclusion only on the ground reached by the appellate court, we also noted, (Samara I, supra, B248553.)
Following our decision in Samara I, Dr. Matar moved for summary judgment. Citing principles of collateral estoppel/issue preclusion, he argued Samara's unsuccessful action against Dr. Nahigian had conclusively established Dr. Nahigian's conduct did not cause Samara's injury, precluding her claim against him based on a theory of vicarious liability as a matter of law. With respect to the allegations of his own negligent conduct, Dr. Matar argued Samara could not prove he had acted below the standard of care or had caused any injury. Dr. Matar included with his motion the declaration of Dr. Barton Kubelka, a licensed dentist, who opined Dr. Matar's treatment plan both before and after the surgery was appropriate and in accordance with the standard of care; he did not have a duty as a referring dentist to warn Samara of the risks of the dental implant procedure; and no negligent act or omission on Dr. Matar's part caused Samara any injury.
Samara opposed the motion, arguing collateral estoppel/issue preclusion did not apply because we had expressly declined in our decision affirming the judgment in favor of Dr. Nahigian to decide the alternative ground of causation. Samara also included a revised declaration from Dr. Doumanian, who opined Dr. Nahigian's use of the wrong-sized implant during surgery was below the standard of care and that his conduct, "to a reasonable degree of medical probability," had caused Samara permanent nerve damage. Finally, citing Dr. Doumanian's declaration, Samara argued triable issues of material fact existed as to whether Dr. Matar was independently negligent in his postoperative treatment of her. She did not argue or include evidence Dr. Matar was negligent in referring her to Dr. Nahigian or that his post-operative care or treatment had caused her injury.
In his reply Dr. Matar argued Samara had failed to raise a triable issue of material fact that any post-operative action or omission had directly caused her injury.
The trial court granted Dr. Matar's motion, ruling under the doctrine of claim preclusion the earlier judgment for Dr. Nahigian barred Samara's vicarious liability claim. The trial court acknowledged modern case law holding issue preclusion/ collateral estoppel inapplicable when the ground relied on by the trial court in an earlier action had not been addressed in the appellate opinion affirming the judgment, but distinguished those authorities on the ground the question in the instant matter was one of claim preclusion, not issue preclusion. The court also found Samara had failed to establish a triable issue of material fact that Dr. Matar had independently caused her injury.
A motion for summary judgment is properly granted only when "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." (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286, 172 Cal.Rptr.3d 653, 326 P.3d 253 ; Schachter v. Citigroup, Inc . (2009) 47 Cal.4th 610, 618, 101 Cal.Rptr.3d 2, 218 P.3d 262.) The evidence must be viewed in the light most favorable to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703, 168 Cal.Rptr.3d 440, 319 P.3d 201 ; Schachter , at p. 618, 101 Cal.Rptr.3d 2, 218 P.3d 262.)
The question of the applicability of claim preclusion or issue preclusion is one of law to which we apply a de novo review. (Johnson v. GlaxoSmithKline, Inc . (2008) 166 Cal.App.4th 1497, 1507, 83 Cal.Rptr.3d 607 (Johnson ); Noble v. Draper (2008) 160 Cal.App.4th 1, 10, 73 Cal.Rptr.3d 3.)2
The doctrine of res judicata has two aspects—claim preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) ...
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