Opinion
G054188
11-29-2017
CHISHOLM P. WIGHT, Plaintiff and Appellant, v. ALEX EIDELSTEIN et al., Defendants and Respondents.
Chisholm P. Wight, in pro. per., for Plaintiff and Appellant. Brian P. Kamel & Associates, Brian P. Kamel and Casey B. Nathan for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00764388) OPINION Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed Chisholm P. Wight, in pro. per., for Plaintiff and Appellant. Brian P. Kamel & Associates, Brian P. Kamel and Casey B. Nathan for Defendants and Respondents.
* * *
Chisholm P. Wight appeals from the trial court's entry of a defense judgment in favor of Alex Eidelstein, Shula Eidelstein, and their dental practice, Dental Excellence, Inc., doing business as San Clemente Dental Care, after granting defendants' summary judgment motion on Wight's complaint for battery, dental malpractice, and fraud. Wight contends a single photograph of his mouth and his allegations in opposition to defendants' earlier demurrer furnished the trial court with "judicial notice" adequate to defeat summary judgment. As to his fraud claim in particular, Wight argues the court erred in excluding an invoice that he failed to authenticate despite defendants' objection. As we explain, these contentions lack merit, and we therefore affirm the judgment.
I
DISCUSSION
For ease of reference, we set out the underlying facts in relation to Wight's specific contentions on appeal. First, he argues the trial court erred in failing to realize a photograph of his mouth he attached as an exhibit to his opposition to summary judgment showed a physical injury that supported the damages element of his battery claim.
Battery has three elements: "'"1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and] [¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff."' [Citation.]" (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) The gravamen of Wight's battery claim was that defendants exceeded the scope of his informed consent when Eidelstein removed tissue from his gums during a dental procedure.
Defendants sought summary judgment on Wight's battery and malpractice claims, or in the alternative summary adjudication, on grounds that Wight consented to the procedure and Dr. Eidelstein performed it within the standard of care. Defendants recounted the facts as follows: "At his initial examination, Dr. Eidelstein recommended that [Wight] receive extractions to his then-existing implants at [the] locations of teeth numbers 7 and 8 [the upper right front tooth, and the one next to it] to treat and cure a preexisting infection at the site of those implants. [Wight] declined this recommendation. Dr. Eidelstein then proposed an alternative treatment plan to which [Wight] consented. Specifically, [Wight] agreed to undergo a dental procedure known as an apicoectomy on tooth number 10 [also an upper tooth] and to then take delivery of a new upper [front] bridge after cover screws were placed on [top of] the implants at the locations of teeth numbers 7 and 8. This agreement was reflected on the treatment plan and informed consent signed by [Wight], and was an appropriate treatment recommendation to treat and cure [Wight's] preexisting infection at the location of teeth numbers 7 and 8." (Record citations omitted.)
Defendants described the procedure this way: "[Wight] received the apicoectomy that he consented to on tooth number 10 on October 31, 2013, followed by the placement of cover screws that he consented to on November 14, 2013. Both of these procedures required Dr. Eidelstein to make an incision and to excise a certain amount of tissue from [Wight's] mouth to be within the standard of care. Removal of any infected tissue in the area was also necessary for these procedures because leaving infected tissue in place would have resulted in the ultimate failure of the planned upper [front] bridge. In order to place the cover screws, Dr. Eidelstein therefore appropriately removed the chronically infected and granulated tissue present at the site of the implants at teeth numbers 7 and 8, as the removal of such tissue was a necessary element of the treatment to which [Wight] consented. No healthy tissue was removed from [Wight's] mouth by Dr. Eidelstein or any other [defendant]." (Record citations omitted.)
In opposition to summary judgment, Wight submitted his declaration and several exhibits, including a photograph in Exhibit 3 depicting his open lips, front teeth, and gums, but the trial court sustained defendants' objections to much of Wight's other evidence. In his declaration, Wight asserted defendants fabricated their claim that Wight's gum tissue was infected and had to be removed. He also asserted that after the apicoectomy he specifically instructed the defendants not to remove any additional gum tissue.
In ruling on defendants' summary judgment motion, the trial court observed regarding Wight's battery cause of action that because Wight "is claiming that he specifically told the Defendant not to remove any tissue, . . . it would appear that any informed consent that was provided in the initial procedure was subsequently withdrawn." The court noted that "if a battery has been committed, Plaintiff would be entitled to compensatory [damages], emotional distress damages [citation] and punitive damages. [Citation]."
But the court concluded: "Plaintiff has unfortunately not produced any evidence that the removal of the tissue caused him physical harm. He argues that once he told the doctor not to remove any more gum tissue, the doctor still removed the tissue on subsequent occasions. However, plaintiff must prove all elements of this cause of action, and without an expert to opine as to whether plaintiff was harmed as a result of the removal, this cause of action fails."
The trial court further explained in its ruling that Wight produced no admissible evidence of emotional distress damages: "His declaration is silent as to any mental worry, grief, distress, and mortification he may have suffered as a result of the alleged battery. Instead, Plaintiff has submitted his VA medical records wherein he described current anxiety over this dental issue. See Declaration of Plaintiff, Ex. 8. However, Defendants have properly objected to Exhibit 8 for lack of foundation, lack of authentication, and hearsay — and said objection is sustained on those grounds. While the court has considered plaintiff's declaration, it does not cure the necessary evidentiary requirements." In other words, nothing in Wight's declaration spoke to damages.
On appeal, Wight relies for proof of damages on a photograph of his mouth he labeled as Exhibit 3, which he attached to his summary judgment opposition. He contends the trial court erred in finding he failed to present evidence of damages because the court "failed to exercise its discretion by not considering the judicial notice it had about the injury to appellant's palate illustrated in Exhibit #3 . . . ." Wight's bid for reversal based on the photograph is flawed in two respects. First, he provides no record citation demonstrating he directed the trial court's attention to the photograph as evidence of damages to support his opposition to summary judgment. The defendants sought summary judgment on grounds Wight could not prove damages, yet nothing suggests Wight relied on the photograph or otherwise directed the trial court's attention to the photograph to rebut the defendants' expert opinion evidence that he had not suffered any damages.
Second and more fundamentally, while a picture is often said to be "worth a thousand words," Wight does not explain how this particular photograph demonstrated he suffered an injury. He merely asserts it "illustrated" his injury. But unlike a bruise, a bloody cut, a visibly broken bone, or other injuries often evidenced by photographs, this photograph shows no similar manifest damage. It depicts an open mouth with the upper lips pulled back to expose the subject's upper teeth, primarily on the right side of the subject's mouth. There is a dark line where some of the teeth meet the gum line, and a small gap between the upper portion of the two front teeth. Wight did not present a comparable picture of a healthy mouth or what his mouth had looked like before the alleged injury. Wight does not describe, and makes no suggestion he described for the trial court, what the viewer is looking at in the picture, including which portions of the picture may depict dental work, which are natural teeth, if any, or even where the injury is displayed in the picture. He does not describe for the untrained eye how what is displayed in the picture is outside the range of normal variation in human mouths, with or without dental work. In short, Wight does not state why the trial court should have realized the photograph constituted proof he had suffered an injury. His bid for reversal based on the photograph therefore fails.
Next, Wight argues that because the trial court overruled an earlier demurrer the defendants filed, the court was required to deny their summary judgment motion. Wight appears to believe that because his amended complaint alleged all the elements of a battery claim based on his assertion the defendants exceeded the scope of his initial consent to treatment, the court could not grant summary judgment. He asserts in a confusing fashion: "The trial court had judicial notice from the demurer litigation regarding the tissue removed not being from an undisclosed risk of the apioectomy, or the delivery of the new bridge. . . . Therefore, the trial court should not have granted the respondents['] motion for summary judgment because that contradicted the court[']s earlier ruling on the demurrer; where the court found the tissue was removed during a separate procedure not consented to by the appellant."
Unfortunately, as a matter of proper procedure, the trial court could not (and we presume did not) make any factual findings at the demurrer stage. Rather, at that stage, a court determines simply whether the plaintiff has alleged the elements of a cause of action under California law, but the plaintiff remains vulnerable to summary judgment if he or she does not produce supporting evidence, as the trial court found here concerning damages. As noted earlier, the photograph on which Wight relies as sole proof of damages did not suffice, and therefore the court did not err in granting summary judgment.
Finally, Wight argues the trial court improperly granted summary judgment on his fraud claim because it erred in excluding a laboratory invoice when Wight failed to authenticate it. Wight claimed defendants defrauded him by stating they would only charge him the lab's actual fees to create a replacement bridge necessary to cover the gap that emerged from their improper removal of gum tissue without his consent. After the defendants charged him more than $2,500 for the bridge, Wight obtained in discovery and presented in opposition to summary judgment an invoice for just $475. Wight claims he is exempt from meeting defendants' authentication objection because they only asserted the objection in reply to his summary judgment opposition. But defendants properly and timely objected in response to Wight's reliance on the invoice in his opposition. Wight failed to file a surreply or otherwise address the issue; he simply did not respond to defendants' authentication objection. The trial court properly excluded the invoice when Wight failed to authenticate it.
II
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.