Espinosa v. Carillo et al

TENTATIVE RULING(S) FOR July 13, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

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RULING.

Espinosa v. Carillo et al

In this medical malpractice case, Plaintiff alleges that on September 20, 2022, she went to

Montclair Medical Center with right foot swelling and pain. She underwent diagnostic studies on her foot,

including X-rays. She was diagnosed with cellulitis. Plaintiff was seen by Defendant Dr. Carrillo and was

told she had no fractures. Plaintiff returned to the hospital on September 29 because she was unable to

walk: she was then hospitalized for three days and given antibiotics for an infection. She was then seen by

Defendant Dr. Atif who indicated he reviewed her X-rays and there were no fractures.

On October 1, 2022, Plaintiff alleges her entire foot collapsed and she could feel the bones on the

bottom of her foot. She was referred to a podiatrist. On October 14, 2022, the treating physician diagnosed

her with Charcot foot, and the deformation and structure of her foot is permanent. She alleges that each of

the Defendants failed to secure standard procedures to protect her and failed to exercise the degree of

knowledge and skill proper in their profession to protect innocent persons from misdiagnosis and the

harmful and unnecessary deformation of her foot.

On March 18, 2026, Defendant Martin Carrillo, M.D. filed the instant Motion for Summary

Judgment. He concurrently filed a Separate Statement of Undisputed Material Facts as well as the

declaration of Kent Shoji, M.D., F.A.C.E.

On June 23, 2026, Plaintiff filed an Opposition and an opposing separate statement. Attached to

the Opposition are the declarations of Robert Baravarian, M.D., and Plaintiff’s own declaration.

On July 2, 2026, Defendant filed a Reply and Evidentiary Objections.

Analysis

Evidentiary Objections. Defendant submits 15 objections to Plaintiff’s evidence. As noted by

Defendant, he is an emergency room physician, and Plaintiff does not dispute she sought care in the

emergency department.

Health and Safety Code section 1799.110, subdivision (c) provides, in relevant part: “In any action

for damages involving a claim of negligence against a physician and surgeon providing emergency

medical coverage for a general acute care hospital emergency department, the court shall admit expert

medical testimony only from physicians and surgeons who have had substantial professional experience

within the last five years while assigned to provide emergency medical coverage in a general acute care

hospital emergency department.” Objections 1 through 13 all pertain to the Baravarian declaration on the

grounds that there are improper qualifications/basis for expert opinions because he does not state that he

possesses the qualifications required by Health and Safety Code section 1799.110, subdivision (c). He

does not attest to having substantial professional experience within the last five years while assigned to

provide emergency medical coverage in a general care hospital emergency department. As such, his

opinions lack evidentiary value.

Additionally, Plaintiff did not authenticate the medical records relied upon and thus lacks

foundation. As such, the Court SUSTAINS objections 1 through 13.

As to objections 14 and 15, they pertain to Exhibits C and D, which are not properly authenticated.

Therefore, the Court SUSTAINS those objections as well.

Merits. Defendant moves for summary judgment on the grounds Plaintiff cannot establish the

necessary elements for her cause of action for medical malpractice because Defendant, at all times,

complied with the applicable standard of care and that the conduct of Defendant was not a substantial

factor in causing any of the alleged injuries/damages.

Dr. Carrillo’s Undisputed Material Facts (UMF). Plaintiff has a history of uncontrolled diabetes.

(UMF 1.) On or around September 20, 2022, Plaintiff presented to the emergency department at Montclair

Hospital with complaints of right foot swelling and pain. (UMF 2.) Notes by Dr. Carrillo indicated Plaintiff

had “3 day history of progressively worsening swelling and pain to the right lower extremity.” (UMF 3.)

Physical examination of the extremities indicated “No deformity. 1 + pitting edema to the right lower

extremity extending from the proximal tibial region to the foot with slight erythema and calor

without tenderness or crepitus. Trace edema to the left lower extremity. Negative Homans sign

bilaterally. Distally NVI throughout. No open wounds. Compartments soft. 2+ pulses throughout.”

Neurologic examination revealed “Moves all extremities purposefully with 5 out 5 motor strength.

Sensation intact distal hands and feet.” (UMF 4, emphasis in the original.) US Venous of the right lower

extremity indicated “No evidence of deep venous thrombosis of right femoral or popliteal.” (UMF 5,

emphasis in the original.)

According to Plaintiff, Dr. Carrillo ordered an X-ray of her foot and Dr. Carrillo conveyed to her the

results did not reveal a fracture. (UMF 6.) Multiple etiologies were considered including but not limited to:

DVT, cellulitis, baker’s cyst, abscess, neuropathy, peripheral vascular disease, vasculitis, and others.

Departure diagnoses indicated right leg edema. Plaintiff was prescribed Keflex. (UMF 7.) Discharge

instructions included “Follow up with your doctor in 2-3 days” as well as instructions to return if her

condition worsened or changed. (UMF 8.)

Defendant presented the Declaration of Kent Shoji, M.D., F.A.C.E.P. (board-certified emergency

medicine physician), who reviewed Plaintiff’s medical records as well as the emergency care and

treatment plan of Plaintiff, and opines that Dr. Carrillo complied with the applicable standard of care at all

times after Plaintiff presented to Montclair Hospital on September 20, 2022, based on Plaintiff’s symptoms

(i.e., 3-day history of progressively worsening swelling and pain to the right lower extremity) as well as a

physical examination revealing edema with slight erythema and calor. He opines that it was appropriate for

Dr. Carrillo to order imaging including ultrasound for DVT (deep venous thrombosis) because DVT is a life

threatening condition. (UMFs 9, 10.) Based on clinical history (including uncontrolled diabetes), physical

examination, and imaging results revealing non-emergent findings, it was reasonable for Dr. Carrillo to

diagnose Plaintiff with “right leg edema” and prescribe her with antibiotics because there was no evidence

of fracture or other abnormal finding including issues with the nerves. Absent evidence of fracture, there

was no basis to diagnose Plaintiff with Charcot foot because Charcot foot cannot be diagnosed absent

evidence of a traumatic injury (i.e., a fracture). (UMF 11.) Absent any emergent findings (e.g., DVT or

fracture), it was appropriate for Dr. Carrillo to advise Plaintiff to follow up with her doctor within 2 to 3 days

for further recommendations/treatment. (UMF 12.)

Based on Dr. Shoji’s review of the medical records as well as his education and experience, it is

his opinion–to a reasonable degree of medical probability—that no act or omission by Dr. Carrillo on

September 20, 2022, caused or contributed to Plaintiff’s injuries because Plaintiff was properly evaluated,

appropriate orders were placed based on her clinical history and presentation, and appropriate

recommendations were made including prescription for antibiotics and instructions to follow-up with her

doctor within 2 to 3 days. (UMF 13.)

With this evidence, Defendant meets his burden of proof. UMFs 1 through 5, 7, and 8 are

undisputed.

It should be noted, however, that Plaintiff’s attempts to dispute UMFs 6 and 9-13 largely fail in light

of Defendant’s objections. The evidence cited to support the dispute for UMF 10 is entirely excluded. As to

UMFs 6, 9, 11, 12, and 13, little evidence in support remains. Technically, the objections did not exclude

the entire declaration of Dr. Baravarian; however, its impact is minimal in light of the fact that he cannot

opine as to whether emergency care complied with the standard of care. However, Paragraphs 6-10 and

15-22 were not objected to and this evidence is cited in support of those UMFs. Paragraphs 6 through 10

do not place any material facts in dispute and provide only factual background that Plaintiff reported a

history of stomping and dancing at a concert several days before going to the ER, afterward she

developed pain and difficulty walking, and she was diagnosed with cellulitis and edema and discharged

with antibiotics. (See Baravarian Decl. ¶¶ 6-10.) The remaining paragraphs 15-22 establish that Dr.

Baravarian did not locate a dedicated right foot X-ray in his review of the records. (¶¶ 15-22.)

Plaintiff’s Opposition and Additional Material Facts (AMF). Plaintiff opposes the motion and argues

that the motion should be denied because the evidence shows that her foot was not X-rayed. In addition,

Plaintiff relies on her expert declaration with respect to whether Defendant’s emergency treatment fell

below the standard of care; however, this declaration, as stated above, is inadmissible for such purposes.

According to Plaintiff, on or about September 17, 2022, she attended a concert and repeatedly

stomped and placed forceful pressure on her right foot while dancing to Banda music. (AMF 1.)

Thereafter, she developed progressive right foot pain, swelling, redness, warmth, and difficulty walking.

(AMF 2.)

On September 20, 2022, Plaintiff went to the ER at Montclair Hospital Medical Center regarding

her right foot. (AMF 3.)

Dr. Baravarian found documentation of a venous ultrasound study and subsequent tibia/fibula

imaging, but he did not locate a radiology report establishing that a dedicated right foot radiographic series

was performed on September 20, 2022. (Admissible Portion of AMF 7, See Baravarian Decl. ¶¶ 16-17.)

As to the X-ray, Plaintiff argues that the September 29, 2022, radiology report identifies the examination as

"XR Right Tibia/Fibula," consisting of two views of the right tibia and fibula. Plaintiff argues that the study

was ordered for swelling and right lower-extremity pain, and as such, its conclusion is limited to a

radiographically negative right tibia and fibula series because it is not a dedicated foot study and does not

establish that the bones and joints of the right foot including the midfoot and Lisfranc region were

evaluated.

On the other hand, while Plaintiff makes this claim, she provides no admissible expert witness

evidence demonstrating that the X-rays completed in the emergency room were insufficient for not being a

“dedicated foot study” or that the lack of a “dedicated foot study” X-ray would fall below the standard of

care in an emergency room setting. Plaintiff claims, however, that at a minimum, this evidence creates a

material factual dispute as to whether Defendant obtained appropriate imaging of the anatomical area

about which Plaintiff complained. However, Defendant met his burden with his expert who reviewed the

imaging and medical records that were completed and opined it was reasonable and within the standard of

care for emergency room settings. The simple statement that there lacked a dedicated foot study does not

place a material fact in dispute where it is also not established that the lack of that study falls below the

standard of care in an emergency room setting. Consequently, Plaintiff’s next argument, that Dr.

Baravarian’s expert opinion establishes a triable fact also fails in light of Defendant’s objections having

been sustained.

In addition, Plaintiff’s challenges to Defendant’s expert are unconvincing. Plaintiff made no

objections on the basis of lack of foundation with respect to the declaration or the medical records upon

which he relied. And, Plaintiff does not establish that the imaging that was completed in the emergency

room and subsequently reviewed by Defendant’s expert was insufficient or based on an assumption that

the foot was X-rayed. The imaging completed, according to Defendant’s expert, allowed him to opine.

Plaintiff for example, could have provided an appropriate expert declaration who opined that the X-ray did

not include sufficient imaging of the foot and that that fell below the standard of care; however, Plaintiff did

not.

Plaintiff also states her own declaration corroborates the course of events, but she is not a

qualified medical expert, and her declaration alone does not meet her burden of proof where Defendant

submitted an appropriate expert declaration.

Finally, Plaintiff regularly relies on “Exhibit A”, a radiology report that was omitted, and thus, not

before the Court. Additionally, her AMFs, at times, fail to cite the relevant paragraphs specifically. In light

of these issues, Plaintiff fails to raise a triable issue of material fact. As she has not met her burden but

Defendant has, the Court grants the motion.

RULING

Based on the foregoing analysis, the Court GRANTS the motion for summary judgment in its

entirety. There are no material facts in dispute, and Defendant is entitled to judgment as a matter of law.

Evidence: The declaration of Lyla H. Stone with attached Exhibits A and B, the declaration of Kent

Shoji, M.D., the declaration of Robert Baravarian, D.P.M. (excluding paragraphs 1-5, 23-32, 33-46), and

Plaintiff’s declaration (excluding Exhibits C and D).