ETHAN ELASKY vs GLENN WALDMAN MD, et al.

2023CUMM015552: ETHAN ELASKY vs GLENN WALDMAN MD, et al. 09/03/2026 in Department 41 Motion for Summary Judgment BY DEFENDANT, JOSEPH VAISMAN, M.D.

Below is the Court’s tentative decision with respect to the matter on calendar. The Court may adopt, modify, or change the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.

If you wish to submit on the Court’s tentative decision without appearing, please send an email to the following address by 8:00 a.m. on the date of the hearing with counsel for all parties copied on your email: courtroom41@ventura.courts.ca.gov. Please state on the subject line of your email: “SUBMISSION ON TENTATIVE”, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative decision is subject to change.

Unless stated otherwise at the hearing, if a formal order is required but not signed at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the Court. A “notice of ruling” in lieu of this procedure is not authorized.

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The Court intends to rule as follows:

Defendant Joseph Vaisman, M.D.’s Motion for Summary Judgment is CONTINUED to November 19, 2026, pursuant to Code of Civil Procedure section 437c, subdivision (h).

Plaintiff may file and serve an Amended Opposition on or before October 30, 2026.

Defendant Vaisman may file a Reply on or before November 8, 2026.

Additionally, by September 8, 2026, Defendant Vaisman shall file the Declaration of Dr. Schares, which appears to have been inadvertently omitted from the moving papers filed with the Court but provided to Plaintiff.

Notice to be provided by Defendant Vaisman.

I.

Background

On January 30, 2024, plaintiff Ethan Elasky (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) for medical malpractice against defendants Glenn Waldman, MD; Joseph Vaisman, MD; and Los Robles Surgical Center, LLC (each a “Defendant” and collectively “Defendants”). The FAC alleges as follows. On August 15, 2022, Plaintiff was admitted to Los Robles Surgical Centers, LLC for nasal surgery/septoplasty to be performed by Defendant Glenn

2023CUMM015552: ETHAN ELASKY vs GLENN WALDMAN MD, et al.

Waldman, MD. Anesthesia care was provided by Defendant Joseph Vaisman, MD. Defendants negligently performed their professional services so that Plaintiff suffered nerve damage to his arm.

On April 28, 2026, Defendant Vaisman filed a Motion for Summary Judgment. On August 14, 2026, Plaintiff filed an Opposition.1

This matter is scheduled for a 10-day jury trial on February 16, 2027.

II.

Discussion

A. Plaintiff’s Request for Continuance

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ.

Proc., § 437c, subd. (h).) “To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated ‘“upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” [Citation.]’ [Citation].” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)

“The nonmoving party seeking a continuance ‘must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation]. The decision whether to grant such a continuance is within the discretion of the trial court. [Citation]. But as this court recently noted, the interests at stake are too high to sanction the denial of a continuance without good reason. ‘[T]echnical compliance with the procedures of Code of Civil Procedure section 437c is required to ensure there is no infringement of a litigant's hallowed right to have a dispute settled by a jury of his or her peers.’ [Citation].” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-634.)

The Declaration of Benjamin L. Bauman, attorney for Plaintiff Elasky, states that “The deposition of Joseph Vaisman, M.D. is currently scheduled for August 27, 2026 at 10:00 a.m. and the deposition of Glenn Waldman, M.D. is currently scheduled for September 2, 2026 at 10:00 a.m., one day before the scheduled motion for summary judgment of Joseph Vaisman, M.D. and both after the deadline for filing this opposition. Plaintiff also scheduled the deposition of another material percipient witness, Robin Segal, RN, to take place on August 11, 2026; however, it is being rescheduled because I was engaged in trial in Santa Maria that started on July 20 and reached a verdict on August 13, 2026. (Juceam v.

REM California, LLC (Super. Ct. County of Santa Barbara, North County – Cook Division, Case No. 23CV04205.)” (Bauman 1 A Motion for Summary Judgment filed by Defendant Waldman is scheduled for hearing on

September 24, 2026.

2023CUMM015552: ETHAN ELASKY vs GLENN WALDMAN MD, et al.

Dec., ¶ 1.) “While the parties have been working professionally and courteously to coordinate discovery in this matter, there have been delays due to the schedules of counsel as well as the physician parties which have made scheduling difficult.” (Bauman Dec., ¶ 2.)

“I requested deposition dates for Dr. Vaisman on April 29, 2026 after being served with Joseph Vaisman, M.D.’s motion for summary judgment and made multiple requests between April 29, 2026 and July 11, 2026. True and correct copies of those e-mails (which also reference conferences where I verbally requested deposition availability) are attached hereto as Exhibit E. Although the parties have worked professionally and courteously together to arrange the scheduling of these depositions, because we are dealing with physicians who have busy schedules, this has proven to be difficult. Nevertheless, today I have again inquired with counsel for Dr. Vaisman to obtain the deposition availability of his expert, Dr. Thomas Schares, whose declaration forms the primary basis for his motion for summary judgment.” (Bauman Dec., ¶ 6.)

Exhibit E to the Bauman Declaration shows that Plaintiff attempted to obtain the depositions of Drs. Vaisman and Waldman but could not schedule them until after the Opposition to the Motion for Summary Judgment was due to be filed. The deposition of these two defendants is necessary and would shed light as to facts regarding what occurred during the surgical procedural. Thus, the Court finds that a continuance is warranted.

Based on the foregoing, the Court elects to continue the hearing on this matter and allow Plaintiff to file an Amended Opposition following the completion of the above depositions. The Court will likewise also Defendant Vaisman to file a Reply to the Amended Opposition.

B. Absence of the filing of the Declaration of Thomas Schares, M.D.

Defendant Vaisman’s motion for summary judgment relies on the supporting declaration of Thomas Schares, M.D. to argue that Dr. Vaisman met the standard of care and was not the cause of Plaintiff’s injuries. However, a thorough and extensive review of the file does not show that the declaration of Thomas Schares, M.D. was filed with the Court. Since the motion must establish these standards and is unable to do so, the motion could be denied. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523 [“In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care”].)

Notwithstanding the foregoing, Plaintiff filed an Opposition which responds to the Motion, including information provided through the Declaration of Dr. Schares. For this reason, the Court will allow a cure of this defect so that the Motion can be heard on the merits. (See Walton v. Victor Valley Comm. College Dist. (2026) 119 Cal.App.5th 1164, 1170-1171 [abuse of discretion to sustain an objection to evidence based on technical defect that can be corrected].)

III.

Conclusion

Defendant Joseph Vaisman, M.D.’s Motion for Summary Judgment is CONTINUED to November 19, 2026, pursuant to Code of Civil Procedure section 437c, subdivision (h).

2023CUMM015552: ETHAN ELASKY vs GLENN WALDMAN MD, et al.

Plaintiff may file and serve an Amended Opposition on or before October 30, 2026.

Defendant Vaisman may file a Reply on or before November 8, 2026.

Additionally, by September 8, 2026, Defendant Vaisman shall file the Declaration of Dr. Schares, which appears to have been inadvertently omitted from the moving papers filed with the Court but provided to Plaintiff.

Notice to be provided by Defendant Vaisman.

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