Rupp vs. Rambacher

relief is not necessary or proper may be made on demurrer. (See Fox Paine & Co. v. Twin City Fire Ins. Co. (2024) 104 Cal.App.5th 1034, review granted 12/11/24 (Case No. S287404) [cited pursuant to Cal Rules of Court, rule 8.1115, subd. (e)].)

Here, declaratory relief is not necessary, as the court has found, based upon the allegations of the pleadings and judicially noticeable facts that Cross-Defendant’s declaration of opposition was timely within the framework provided in Civil Code section 3071.

Leave to Amend

Since the Cross-Complaint was Cross-Complainant’s first attempt to plead a viable cause of action, the Court shall grant Cross- Complainant leave to amend.

Motion to Strike Portions of Cross-Complaint

In light of the foregoing, the motion to strike is DENIED as MOOT. Cross-Defendant may renew its motion to strike directed against any amended Cross-Complaint that may be subsequently filed.

Cross-Defendant shall provide notice.

9 Rupp vs. Rambacher

2024-01400738 Motion for Summary Judgment and/or Adjudication

Defendants Thomas E. Rambacher, DPM and Podiatry Hotline Inc.’s Motion for Summary Judgment is DENIED.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“A [defendant] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., §437c, subdivision (p)(2).) Once that burden is met, the burden shifts to Plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“[F]rom commencement to conclusion, the party moving for

summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

Statute of Limitations

Defendants argue that summary judgment is warranted because Plaintiff’s single cause of action for professional negligence is untimely under the one-year statute of limitations set forth in Code Civil Procedure section 340.5.

Defendants argue that the one-year period begins to run on the date a reasonable person in Plaintiff’s situation would have suspected that the alleged injury was caused by Defendants’ negligence. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)

Defendants argue that the undisputed facts show that Plaintiff should reasonably have suspected that Defendants were negligent in treating Plaintiff no later than 10/11/22, because he could not curl his toes at a postoperative checkup where the pins were removed from his foot. (See SSUMF Nos. 35-42.)

Where there is a continuing physician-patient relationship following the treatment that is alleged to constitute malpractice, a patient has a “diminished duty to discover” that the physician’s substandard care was a cause of the plaintiff’s injuries while the plaintiff remains under the care of the physician. (See Unijan v. Berman (1989) 298 Cal.App.3d 881, 886-888.)

Here, there is a triable issue of fact as to when Plaintiff should reasonably have suspected the cause of his alleged injuries being related to substandard medical treatment. Plaintiff’s own deposition testimony provides several possible dates that Plaintiff could have become aware of a negligent cause of his post-surgical outcome. Thus, summary judgment is not warranted on the issue of timeliness.

Elements of Medical Malpractice

“The elements of a cause of action for medical malpractice are: (1)

a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) A mere possibility the defendant’s negligence caused the wrong is insufficient. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702.)

“The first element, standard of care, is the key issue in a malpractice action and can only be proved by expert testimony, unless the circumstances are such that the required conduct is within the layperson's common knowledge.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968, 191 Cal.Rptr.3d 766 (Lattimore).) Proving the third element, causation, also requires “ ‘competent expert testimony.’ ” (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1336, 115 Cal.Rptr.3d 538 (Miranda); accord, Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385, 271 Cal.Rptr. 780 (Salasguevara) [“medical causation can only be determined by expert medical testimony”].) (San Antonio Regional Hospital v. Superior Court of San Bernardino County (2024) 102 Cal.App.5th 346, 350.)

Furthermore, “[a]n expert is qualified to testify where she possesses special skill or experience in her field “ ‘so that [her] testimony [is] likely to assist the jury in the search for the truth.’ ” (Lattimore, supra, 239 Cal.App.4th at p. 969, 191 Cal.Rptr.3d 766.) Expert testimony is properly excluded as speculative where the expert lacks expertise over the subject matter of the litigation. (E.g., Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 759, 149 Cal.Rptr.3d 614, 288 P.3d 1237.)” (San Antonio Regional Hospital v. Superior Court of San Bernardino County, 102 Cal.App.5th at 351–352.)

When a defendant moves for summary judgment and supports its motion with expert declarations that his conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of the University of Calif.

(1989) 215 Cal.App.3d 977, 985.) In assessing whether the plaintiff’s evidence creates a triable issue of fact, the plaintiff’s counter-expert declarations are to be liberally construed, and any doubts resolved in favor of the plaintiff. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 126, 128-129.)

Here, Defendant supports its motion by submitting the declaration of Gennady Kolodenker, DPM. Dr. Kolodenker is board certified in Podiatric Medicine. Dr. Kolodenker opines that Defendants’ care of Plaintiff was within the standard of care, based upon his review of the Complaint, Plaintiff’s medical records, Plaintiff’s deposition, Plaintiff’s discovery responses, and the deposition of Rambacher. Dr. Kolodenker reasons that the treatment was within the standard of care because Plaintiff had a complex injury that did not respond to conservative treatment, Dr. Rambacher correctly diagnosed the malady, and Dr. Rambacher recommended the appropriate surgical intervention. Furthermore, Dr. Kolodenker opines that Dr. Rambacher appropriately performed the surgery and that any complications suffered were known complications from the procedure Plaintiff underwent.

In response, Plaintiff offers the declaration of Brandon A. Haghverdian, MD. Dr. Haghverdian is a licensed medical doctor who practices orthopedic foot and ankle surgery. Dr. Haghverdian has experience treating patients who have had complications from failed foot and ankle surgeries. Dr. Haghverdian bases his opinions upon his review of Plaintiff’s medical records, imaging, operative reports, post operative treatment records, and his own treatment of Plaintiff. Dr. Haghverdian has also assessed the declaration of Dr.

Kolodenker. Dr. Haghverdian offers his opinions to a reasonable degree of medical probability and bases his opinions upon his education, experience, training, medical records, medical imaging, and his direct evaluation and treatment of Plaintiff. Dr. Haghverdian opines that Dr. Rambacher’s surgical planning and decision making were not supported by the clinical findings. Dr. Haghverdian opines that the combination of findings present in this case indicate that the failure of the initial surgery was the result of Dr.

Rambacher’s professional negligence. Dr. Haghverdian opines that the failures from the surgery are the cause of Plaintiff’s postoperative injuries and complications.

Defendants’ Objections to the declaration of Dr. Haghverdian are OVERRULED. The declaration provides sufficient foundation for Dr. Haghverdian’s opinions. Dr. Haghverdian is appropriately qualified to offer his opinions. Dr. Haghverdian bases his opinions on Plaintiff’s medical records, imaging, and Dr. Haghverdian’s

own treatment of Plaintiff. Dr. Haghverdian provides a reasoned basis for his standard of care and causation opinions and disputes the findings of Dr. Kolodenker. Thus, there is a triable issue of material fact as to the elements of breach of duty and causation such that the motion must be DENIED.

Plaintiff shall provide notice.

10 Casate vs. Allview Real Estate

2026-01542936 Motion to Strike Complaint

Continued to 6/25/26. See minute order dated 6/1/26.

11 Hoag Memorial Hospital Presbyterian vs. Monarch Health Plan, Inc.

2026-01546114 Demurrer to Amended Complaint

Continued to 7/23/26. See minute order dated 6/1/26. 12 Woo vs. General Motors, LLC

2025-01518945 Motion for Attorney Fees

Continued to 7/23/26. See minute order dated 6/8/26.

13 Rayas vs. Padilla

2023-01367764 Motion to Disqualify Attorney of Record

Plaintiff Fernando J. Rayas’ motion to disqualify Callahan & Blaine, PC from representing Canchola-Padilla Limited Partnership [“Partnership”] is DENIED. (Code Civ. Proc., §§ 128, subd. (a)(5), 284, subd. (2) [court’s authority]; Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1723-1724 [court’s authority to disqualify counsel “on a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information”]; Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 128 [disqualifying partnership counsel based on lack of authority of equal partner to appoint same].)

Moving party has not shown the existence of a conflict requiring disqualification of Partnership counsel. The fact that Padilla and the Partnership both contend the Partnership is dissolved, does not mean that Partnership counsel cannot represent the Partnership’s best interests, and moving party cites no authority that it does. (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 445 [“A partnership does not terminate upon dissolution but continues until the winding up of partnership affairs is