Tsang v. Willardsen













Filed 6/25/12 Tsang v. Willardsen CA4/2











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

SUSIE TSANG, Plaintiff and Appellant, v. JOHN E. WILLARDSEN, Defendant and Respondent.

E052345 (Super.Ct.No. CIVDS900102) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Janet M. Frangie, Judge.
Affirmed.

Kenneth
A. Roberts for Plaintiff and Appellant.

Kramer,
DeBoer, Endelicato & Keane, and Constance Endelicato, for Defendant and
Respondent.

Plaintiff
and appellant Susie Tsang (Tsang) filed an action against defendant and
respondent John E. Willardsen, who is a doctor of href="http://www.sandiegohealthdirectory.com/">dental surgery
(Dr. Willardsen), arising out of alleged negligent performance of “dental
treatment, implant surgery and related dental care, which caused her to suffer
permanent damage to her teeth, gums, mouth and nervous system.” Dr. Willardsen moved for summary judgment,
which the trial court granted. Tsang
appeals, contending the trial court erred in granting the motion since there
were triable issues of fact as to Dr. Willardsen’s negligence.

I. STANDARD OF REVIEW

The
well-known principles generally governing appellate review of an order granting
a motion for summary judgment are as follows:
“A trial court properly grants summary judgment where no triable issue
of material fact exists and the moving party is entitled to judgment as a
matter of law. [Citation.] We review the trial court’s decision de novo,
considering all of the evidence the parties offered in connection with the
motion (except that which the court properly excluded) and the uncontradicted
inferences the evidence reasonably supports.
[Citation.] In the trial court, once
a moving defendant has ‘shown that one or more elements of the cause of action,
even if not separately pleaded, cannot be established,’ the burden shifts to
the plaintiff to show the existence of a triable issue; to meet that burden,
the plaintiff ‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of
action . . . .’
[Citations.]” (>Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476-477, citing Code Civ. Proc., § 437c, subd. (>o)(2).)

II. PROCEDURAL BACKGROUND AND FACTS

A recitation of the facts is difficult to provide. The notice designating the record on appeal
listed only five items. It also
expressly elected to waive a reporter’s transcript while acknowledging that
“without a record of the oral proceedings in the superior court, the Court of
Appeal will not be able to consider what was said during those proceedings in
determining whether an error was made in the superior court proceedings.” As finally filed, the 46-page clerk’s transcript
contains only the following: (1)
register of actions; (2) [proposed] order granting href="http://www.fearnotlaw.com/">motion for summary judgment by defendant;
(3) judgment by court under Code of Civil Procedure section 437c; (4)
notice of entry of order granting motion for summary judgment; (5) notice of
entry of judgment by court under Code of Civil Procedure section 437c; (6)
notice of appeal; and (7) notice designating record on appeal. No other pleadings or documents were
included.

Subsequently,
Tsang, apparently recognizing a deficiency in the record, filed a motion, along
with a stipulation by the parties, to augment the record with Tsang’s
opposition to the motion for summary judgment and supporting declaration of
Daniel Kantarovich, D.D.S. However,
Tsang has failed to provide this court with her complaint, which sets forth the
operative pleadings, and Dr. Willardsen’s motion for summary
judgment. The court cannot conduct a de
novo review when it has not been provided with a complete record of the
proceedings below. (Cal. Rules of Court,
rules 8.120-8.122; see Advanced Choices,
Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1670
[appellate court must ignore issues requiring review of documents not provided
by appellant]; Estate of Fain (1999)
75 Cal.App.4th 973, 987 [“where the appellant fails to produce a complete
record of oral trial proceedings, a challenge based on the claim of evidence
insufficiency will not be heard”].)
Thus, our review is limited to Tsang’s opposition and
Dr. Kantarovich’s supporting declaration and the order of the trial court
stating its reasons for granting summary judgment in favor of
Dr. Willardsen.

According
to the record on appeal, specifically, the declaration of Dr. Kantarovich,
on June 25, 2007, Tsang went to Dr.
Willardsen for a consultation regarding her “oral condition.” They discussed her “mandibular posterior
missing teeth and the need for a CT scan.”
On July 10, Tsang was quoted $12,000 for four dental
implants/implant crowns. She went back
to see Dr. Willardsen on September 18 to provide a $1,000 advance,
complete a presurgical visit, and sign an implant treatment, surgery and
anesthesia consent form for “an, ‘EXT #2, graft membrane, 4 implants, plus 1 if
necessary.’” On September 25, she
paid $6,000 more towards her treatment and surgery was performed. On October 8,
2007,
the implants were “surgically uncovered and master impressions were made and
sent to the lab for final implant crown fabrication.” When she returned for implant crown delivery,
she disagreed with Dr. Willardsen regarding the implant crown size, shape,
and form.

On January 8, 2009, fifteen months after her
disagreement with Dr. Willardsen, Tsang initiated this action. Although we do not have a copy of the
complaint, according to the trial court’s decision, Tsang’s claims were limited
to Dr. Willardsen’s “negligent performance of the dental treatment,
implant surgery and related dental care, which caused her to suffer permanent
damage to her teeth, gums, mouth and nervous system.” On April 30,
2010,
Dr. Willardsen moved for summary judgment.
Tsang opposed the motion, offering the declaration of Dr. Kantarovich,
who did not address the issue of negligent performance of dental treatment. Rather, Dr. Kantarovich opined that this
case is one involving “a gross mismanagement of proper informed consent for the
need of interdisciplinary dentistry.” At
the July 15, 2010, hearing on the motion, the trial court continued the
matter “for further briefing on the following issues: 1. Whether or not the allegations of the
complaint broadly encompass a claim for negligence based upon an alleged lack
of conformed [sic] consent;
2. Further opposition based upon [Tsang’s] claim of lack of reliability of
[Dr. Willardsen’s] expert opinion with respect to the January letter in
[Dr. Willardsen’s] files, and 3. Whether or not the court has the
authority/discretion to grant leave to amend the complaint at the hearing of
the summary judgment motion.”
(Capitalization omitted.)

Following
supplemental briefing, the trial court considered all the evidence and
reasonable inferences. Recognizing there
were no allegations of a lack of informed consent, and finding that Dr.
Willardsen provided an expert’s declaration showing he had met the standard of
care and did not cause Tsang’s injury, the trial court found that
Dr. Willardsen’s evidence was sufficient to meet the initial burden of
proof. Because Tsang’s evidence was not
directed at the issues raised in the pleading, the court granted summary
judgment in favor of Dr. Willardsen.

III. DISCUSSION

Tsang challenges the trial court’s decision to grant
summary judgment in favor of Dr. Willardsen, arguing that “the allegations
in the original complaint are stated in broad terms that cover lack of informed
consent.” (Capitalization omitted.) In his reply brief, Dr. Willardsen
argues that Tsang’s form complaint containing a single cause of action for
negligence failed to allege that he “had a duty to advise her of the risks and
complications of certain treatment and that [he] negligently failed to do
so.” Dr. Willardsen further points
out Tsang’s failure to designate a complete record from which this court can
evaluate the propriety of the lower’s court findings and decision. In response, Tsang contends the record on
appeal is not deficient or lacking evidence of judicial error because it
includes the trial court’s order that “referenced and stated the language
alleged in the original complaint that raise the issues on appeal herein.” We disagree.

Here, without the complaint and the motion for summary
judgment, this court is unable to conduct a de novo review. “Appealed judgments and orders are presumed
correct, and error must be affirmatively shown.
[Citation.]” (>Hernandez v. >California >Hospital >Medical >Center> (2000) 78 Cal.App.4th 498, 502.) The burden is on the appealing party to
provide an adequate and accurate record on appeal to demonstrate error. The failure to do so “precludes an adequate
review and results in affirmance of the trial court’s determination. [Citation.]”
(Estrada v. Ramirez (1999) 71
Cal.App.4th 618, 620, fn. 1.) Without
the complaint and the motion for summary judgment, “we cannot review the basis
of the court’s decision.” (>Hernandez v. California Hospital Medical
Center, supra, at p. 502.) Accordingly, we have no basis to conclude
there was any error with respect to the court’s decision to grant summary
judgment in favor of Dr. Willardsen.



IV. DISPOSITION

The judgment is affirmed.
Dr. Willardsen shall recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS





HOLLENHORST

Acting P. J.

We concur:



KING

J.



CODRINGTON

J.