Preview
1 Brian P. Kamel, Esq. (State Bar No. 152712)
E-FILED
Yee Lam, Esq. (State Bar No. 224741) 1/29/2021 3:36 PM
2 Emily R. Barcenas, Esq. (State Bar No. 315435)
BRIAN P. KAMEL & ASSOCIATES Superior Court of California
3 12400 Wilshire Boulevard, Suite 1150 County of Fresno
Los Angeles, California 90025 By: C. York, Deputy
4 Telephone: (310) 857-1320
5 Attorneys for Defendant,
SAMUEL GABRIEL, D.M.D., erroneously sued
6 and served as SAMUEL GABRIEL, D.D.S.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF FRESNO
10
11 PERA THIK, an individual, ) CASE NO. 19CECG04090
)
12 Plaintiff, ) OBJECTIONS TO DECLARATION OF
) JAY P. MALMQUIST, D.M.D. IN
13 ) SUPPORT OF PLAINTIFF’S
vs. ) OPPOSITION TO DEFENDANT,
14 ) SAMUEL GABRIEL, D.M.D.’S MOTION
) FOR SUMMARY JUDGMENT
15 SAMUEL GABRIEL, D.D.S., an individual; )
NECDET OZDER DENTAL, P.C. dba PREMIER ) [Filed Concurrently with the Reply
16 DENTAL & ORTHODONTICS, a California ) Memorandum; Reply to Opposition Separate
Corporation; and DOES 1 through 10, Inclusive, ) Statement of Undisputed Facts]
17 )
Defendants. ) Hearing Date: February 4, 2021
18 ) Time: 1:30 p.m.
) Dept. 502
19 )
)
20 )
)
21 )
22
TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
23
24 Pursuant to California Rule of Court 3.1354 Defendant, SAMUEL GABRIEL, D.M.D., hereby
25 objects to the portions of the Declaration of JAY P. MALMQUIST, D.M.D., in Opposition to
26 Defendant’s Motion for Summary Judgment set forth below (defendant refers to page numbers as there
27 are no paragraph numbers and no line numbers):
Page: 1
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
1
2 Material Objected to: Grounds for Objection: Ruling on Objection:
3
1. Malmquist declaration, pg. 1. Hearsay (Evid. Code § 1200); 1. Sustained:
4
2, The broken endodontic file Speculation; Lack of personal __________________
5
was inserted inside Mr. Thik’s knowledge (Evid. Code § 702(a)); __________________
6
tooth and into his bone at least Conclusory; Improper Expert Overruled:
7
5mm - Opinion (Evid. Code §803); __________________
8
6mm too far, serving no Argumentative; Lacks foundation; __________________
9
therapeutic purpose and falling Best Evidence Rule--document
10
below the standard of care. speaks for itself.
11
12 2. Malmquist decl., pg. 2. 2. Hearsay (Evid. Code § 1200); 2. Sustained:
13 Leaving the file so deep into the Speculation; Lack of personal __________________
14 bone was an egregious action. knowledge (Evid. Code § 702(a)); __________________
15 Conclusory; Improper Expert Overruled:
16 Opinion (Evid. Code §803); __________________
17 Argumentative; Lacks foundation; __________________
18 Best Evidence Rule--document
19 speaks for itself.
20
21
22
23
24
25
26
27
Page: 2
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
1 3. Malmquist decl., pg. 2: Dr. 3. Hearsay (Evid. Code § 1200); 3. Sustained:
2 Gabriel failed to chart or document Speculation; Lack of personal __________________
3 in the medical chart any notes knowledge (Evid. Code § 702(a)); __________________
4 regarding his assessment or Conclusory; Improper Expert Overruled:
5 procedures conducted upon Mr. Opinion (Evid. Code §803); __________________
6 Thik at the time of the procedure. Argumentative; Lacks foundation; __________________
7 A lack of charting his actions at Best Evidence Rule--document
8 the time of the procedure by itself speaks for itself; Beyond the scope of
9 is below the applicable standard of the Summary Judgment Motion.
10 care.
11
4. Malmquist decl., pg. 2: 4. Hearsay (Evid. Code § 1200); 4. Sustained:
12
Having a third party enter Speculation; Lack of personal __________________
13
information into Mr. Thik’s knowledge (Evid. Code § 702(a)); __________________
14
medical/dental record more than Conclusory; Improper Expert Overruled:
15
three years after a procedure was Opinion (Evid. Code §803); __________________
16
completed, after he learned that Argumentative; Lacks foundation; __________________
17
Mr. Thik was pursuing litigation, Best Evidence Rule--document
18
and by his best recollection was speaks for itself; Beyond the scope of
19
below the standard of care. the Summary Judgment Motion.
20
21 5. Malmquist Decl., pg. 2 10 d: 5. Hearsay (Evid. Code § 1200); 5. Sustained:
22 It would be highly unlikely that a Speculation; Lack of personal __________________
23 dentist who evaluated and/or knowledge (Evid. Code § 702(a)); __________________
24 treated up to 30 patients per day Conclusory; Improper Expert Overruled:
25 (well over 20,000 patients) Opinion (Evid. Code §803); __________________
26 between the date of injury on Argumentative; Lacks foundation; __________________
27 March 26, 2016 to approximately Best Evidence Rule--document
three years after, would be able to speaks for itself; Beyond the scope
Page: 3
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
1 have a clear recollection of what of the Summary Judgment Motion.
2 procedures or what conversation
3 took place with Mr. Thik.
4
6. Malmquist Decl., pg. 2 10 f: 6. Hearsay (Evid. Code § 1200); 6. Sustained:
5
Despite allegedly seeing Mr. Speculation; Lack of personal __________________
6
Thik four times, Dr. Gabriel knowledge (Evid. Code § 702(a)); __________________
7
never attempted to remove the Conclusory; Improper Expert Overruled:
8
file or refer to an Oral Surgeon Opinion (Evid. Code §803); __________________
9
for extraction despite diagnostic Argumentative; Lacks foundation; __________________
10
evidence available coupled with Best Evidence Rule--document
11
Mr. Thik’s reported signs and speaks for itself; Beyond the scope
12
symptoms. of the Summary Judgment Motion.
13
14 7. Malmquist Decl., pg. 2 10 g: 7. Hearsay (Evid. Code § 1200); 7. Sustained:
15 Failing to ensure understanding, Speculation; Lack of personal __________________
16 provide teaching, and identify the knowledge (Evid. Code § 702(a)); __________________
17 broken file to Mr. Thik and Conclusory; Improper Expert Overruled:
18 subsequently remove it from Mr. Opinion (Evid. Code §803); __________________
19 Thik’s bone was below the Argumentative; Lacks foundation; __________________
20 applicable standard of care. Best Evidence Rule--document
21 speaks for itself; Beyond the scope
22 of the Summary Judgment Motion.
23
8. Malmquist Decl., pg. 2: The 8. Hearsay (Evid. Code § 1200); 8. Sustained:
24
above failures to comply with the Speculation; Lack of personal __________________
25
applicable standards of care knowledge (Evid. Code § 702(a)); __________________
26
caused Mr. Thik considerable Conclusory; Improper Expert Overruled:
27
and unnecessary pain and Opinion (Evid. Code §803); __________________
suffering and set in motion a Argumentative; Lacks foundation; __________________
Page: 4
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
1 series of events that caused him Best Evidence Rule--document
2 to have a diminished quality of speaks for itself; Beyond the scope
3 life. of the Summary Judgment Motion.
4
9. Malmquist Decl., pg. 2: Due 9. Hearsay (Evid. Code § 1200); 9. Sustained:
5
to a broken endodontic file being Speculation; Lack of personal __________________
6
forced into the bone inside his knowledge (Evid. Code § 702(a)); __________________
7
tooth Mr. Thik should have been Conclusory; Improper Expert Overruled:
8
sent to an Oral Surgeon to have Opinion (Evid. Code §803); __________________
9
the file removed soon after it was Argumentative; Lacks foundation; __________________
10
broken off inside his person. Not Best Evidence Rule--document
11
ensuring it’s removal was speaks for itself; Beyond the scope
12
egregious. of the Summary Judgment Motion
13
14 10. Malmquist Decl., pg. 3: 10. Hearsay (Evid. Code § 1200); 10. Sustained:
15 Furthermore since Dr. Gabriel Speculation; Lack of personal __________________
16 did not chart anything at the time knowledge (Evid. Code § 702(a)); __________________
17 of completion or soon thereafter Conclusory; Improper Expert Overruled:
18 it is the same as not being Opinion (Evid. Code §803); __________________
19 completed at all. If he was Argumentative; Lacks foundation; __________________
20 charting by exception then he Best Evidence Rule--document
21 missed the mark even further by speaks for itself; Beyond the scope
22 not charting the breakage of the of the Summary Judgment Motion
23 file at the time it occurred.
24
11. Malmquist Decl., pg. 3: Mr. 11. Hearsay (Evid. Code § 1200); 11. Sustained:
25
Thik had no idea that this Speculation; Lack of personal __________________
26
endodontic metal broken file was knowledge (Evid. Code § 702(a)); __________________
27
left inside his tooth due to a lack Conclusory; Improper Expert Overruled:
of proper assessment and care Opinion (Evid. Code §803); __________________
Page: 5
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
1 that should be received in an Argumentative; Lacks foundation; __________________
2 outpatient dental setting. The Best Evidence Rule--document
3 assessment and treatment of Pera speaks for itself; Beyond the scope
4 Thik by Samuel Gabriel D.D.S. of the Summary Judgment Motion
5 was below the standard of care.
6 As a result of a lack of consistent
7 and competent dental care, the
8 plaintiff’s condition became
9 acute and caused him years of
10 pain and suffering.
11
12. Malmquist Decl., pg. 2 16: I 12. Hearsay (Evid. Code § 1200); 12. Sustained:
12
hold each of these opinions to a Speculation; Lack of personal __________________
13
reasonable degree of medical and knowledge (Evid. Code § 702(a)); __________________
14
dental probability. Conclusory; Improper Expert Overruled:
15
Opinion (Evid. Code §803); __________________
16
Argumentative; Lacks foundation; __________________
17
Best Evidence Rule--document
18
speaks for itself; Beyond the scope
19
of the Summary Judgment Motion
20
21
22 Respectfully submitted,
Dated: January 29, 2021 BRIAN P. KAMEL & ASSOCIATES
23
24 By:
Brian P. Kamel, Esq.
25 Yee Lam, Esq.
Emily R. Barcenas, Esq.
26 Attorneys for Defendant,
SAMUEL GABRIEL, D.M.D.
27
Page: 6
OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
I am employed in the County of Los Angeles, State of California.
3
I am over the age of 18 and not a party to the within action; my business address is
4 12400 Wilshire Boulevard, Suite 1150, Los Angeles, California 90025.
5 On January 29, 2021, I served the foregoing document described as:
6 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION
7 FOR SUMMARY JUDGMENT
8 On the interested parties in this action by placing [X] true copies [] the original thereof enclosed in
sealed envelopes addressed as follows:
9
Jeremy M. Dobbins, Esq. Richard S. Salinas, Esq.
10 Law Office of Jeremy M. Dobbins Carol A. O’Neil, Esq.
1225 E. Divisadero Street SALINAS LAW GROUP
11
Fresno, CA 93721 8405 North Fresno Street, Ste. 150
12 Attorney for Plaintiff Fresno, CA 93720
Attorneys for Co-Defendant
13
[ ] (BY REGULAR [X] EXPRESS MAIL) I caused such envelope(s) to be deposited in a
14 designated "OUT" box in the office of my employer, following this business' ordinary practice,
with which I am readily familiar. On the same day correspondence is placed for collection and
15 mailing it is deposited in the ordinary course of business with the United States Postal Service
and/or FedEx. (C.C.P. Section 1013 and 1013a). If the box for express mail is checked, the
16 method of service was reasonably calculated to reach the above recipients by the close of the
next business day.
17
[ ] (PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the
18 addressee.
19 [ X] (BY EMAIL) Pursuant to an e-service agreement between the parties, I caused a copy of such
documents to be served by email to the email addresses.
20
[X] (State) I declare under penalty of perjury under the laws of the State of California that the
21 above is true and correct.
22 Executed on January 29, 2021, at Los Angeles, California.
23
24
Yee Lam, Esq.
25
26
27
Page: 7
OBJECTIONS TO DECLARATION OF JAYPROOF OF SERVICE
P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO
DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT
Preview
1 Brian P. Kamel, Esq. (State Bar No. 152712) E-FILED Yee Lam, Esq. (State Bar No. 224741) 1/29/2021 3:36 PM 2 Emily R. Barcenas, Esq. (State Bar No. 315435) BRIAN P. KAMEL & ASSOCIATES Superior Court of California 3 12400 Wilshire Boulevard, Suite 1150 County of Fresno Los Angeles, California 90025 By: C. York, Deputy 4 Telephone: (310) 857-1320 5 Attorneys for Defendant, SAMUEL GABRIEL, D.M.D., erroneously sued 6 and served as SAMUEL GABRIEL, D.D.S. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF FRESNO 10 11 PERA THIK, an individual, ) CASE NO. 19CECG04090 ) 12 Plaintiff, ) OBJECTIONS TO DECLARATION OF ) JAY P. MALMQUIST, D.M.D. IN 13 ) SUPPORT OF PLAINTIFF’S vs. ) OPPOSITION TO DEFENDANT, 14 ) SAMUEL GABRIEL, D.M.D.’S MOTION ) FOR SUMMARY JUDGMENT 15 SAMUEL GABRIEL, D.D.S., an individual; ) NECDET OZDER DENTAL, P.C. dba PREMIER ) [Filed Concurrently with the Reply 16 DENTAL & ORTHODONTICS, a California ) Memorandum; Reply to Opposition Separate Corporation; and DOES 1 through 10, Inclusive, ) Statement of Undisputed Facts] 17 ) Defendants. ) Hearing Date: February 4, 2021 18 ) Time: 1:30 p.m. ) Dept. 502 19 ) ) 20 ) ) 21 ) 22 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 23 24 Pursuant to California Rule of Court 3.1354 Defendant, SAMUEL GABRIEL, D.M.D., hereby 25 objects to the portions of the Declaration of JAY P. MALMQUIST, D.M.D., in Opposition to 26 Defendant’s Motion for Summary Judgment set forth below (defendant refers to page numbers as there 27 are no paragraph numbers and no line numbers): Page: 1 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT 1 2 Material Objected to: Grounds for Objection: Ruling on Objection: 3 1. Malmquist declaration, pg. 1. Hearsay (Evid. Code § 1200); 1. Sustained: 4 2, The broken endodontic file Speculation; Lack of personal __________________ 5 was inserted inside Mr. Thik’s knowledge (Evid. Code § 702(a)); __________________ 6 tooth and into his bone at least Conclusory; Improper Expert Overruled: 7 5mm - Opinion (Evid. Code §803); __________________ 8 6mm too far, serving no Argumentative; Lacks foundation; __________________ 9 therapeutic purpose and falling Best Evidence Rule--document 10 below the standard of care. speaks for itself. 11 12 2. Malmquist decl., pg. 2. 2. Hearsay (Evid. Code § 1200); 2. Sustained: 13 Leaving the file so deep into the Speculation; Lack of personal __________________ 14 bone was an egregious action. knowledge (Evid. Code § 702(a)); __________________ 15 Conclusory; Improper Expert Overruled: 16 Opinion (Evid. Code §803); __________________ 17 Argumentative; Lacks foundation; __________________ 18 Best Evidence Rule--document 19 speaks for itself. 20 21 22 23 24 25 26 27 Page: 2 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT 1 3. Malmquist decl., pg. 2: Dr. 3. Hearsay (Evid. Code § 1200); 3. Sustained: 2 Gabriel failed to chart or document Speculation; Lack of personal __________________ 3 in the medical chart any notes knowledge (Evid. Code § 702(a)); __________________ 4 regarding his assessment or Conclusory; Improper Expert Overruled: 5 procedures conducted upon Mr. Opinion (Evid. Code §803); __________________ 6 Thik at the time of the procedure. Argumentative; Lacks foundation; __________________ 7 A lack of charting his actions at Best Evidence Rule--document 8 the time of the procedure by itself speaks for itself; Beyond the scope of 9 is below the applicable standard of the Summary Judgment Motion. 10 care. 11 4. Malmquist decl., pg. 2: 4. Hearsay (Evid. Code § 1200); 4. Sustained: 12 Having a third party enter Speculation; Lack of personal __________________ 13 information into Mr. Thik’s knowledge (Evid. Code § 702(a)); __________________ 14 medical/dental record more than Conclusory; Improper Expert Overruled: 15 three years after a procedure was Opinion (Evid. Code §803); __________________ 16 completed, after he learned that Argumentative; Lacks foundation; __________________ 17 Mr. Thik was pursuing litigation, Best Evidence Rule--document 18 and by his best recollection was speaks for itself; Beyond the scope of 19 below the standard of care. the Summary Judgment Motion. 20 21 5. Malmquist Decl., pg. 2 10 d: 5. Hearsay (Evid. Code § 1200); 5. Sustained: 22 It would be highly unlikely that a Speculation; Lack of personal __________________ 23 dentist who evaluated and/or knowledge (Evid. Code § 702(a)); __________________ 24 treated up to 30 patients per day Conclusory; Improper Expert Overruled: 25 (well over 20,000 patients) Opinion (Evid. Code §803); __________________ 26 between the date of injury on Argumentative; Lacks foundation; __________________ 27 March 26, 2016 to approximately Best Evidence Rule--document three years after, would be able to speaks for itself; Beyond the scope Page: 3 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT 1 have a clear recollection of what of the Summary Judgment Motion. 2 procedures or what conversation 3 took place with Mr. Thik. 4 6. Malmquist Decl., pg. 2 10 f: 6. Hearsay (Evid. Code § 1200); 6. Sustained: 5 Despite allegedly seeing Mr. Speculation; Lack of personal __________________ 6 Thik four times, Dr. Gabriel knowledge (Evid. Code § 702(a)); __________________ 7 never attempted to remove the Conclusory; Improper Expert Overruled: 8 file or refer to an Oral Surgeon Opinion (Evid. Code §803); __________________ 9 for extraction despite diagnostic Argumentative; Lacks foundation; __________________ 10 evidence available coupled with Best Evidence Rule--document 11 Mr. Thik’s reported signs and speaks for itself; Beyond the scope 12 symptoms. of the Summary Judgment Motion. 13 14 7. Malmquist Decl., pg. 2 10 g: 7. Hearsay (Evid. Code § 1200); 7. Sustained: 15 Failing to ensure understanding, Speculation; Lack of personal __________________ 16 provide teaching, and identify the knowledge (Evid. Code § 702(a)); __________________ 17 broken file to Mr. Thik and Conclusory; Improper Expert Overruled: 18 subsequently remove it from Mr. Opinion (Evid. Code §803); __________________ 19 Thik’s bone was below the Argumentative; Lacks foundation; __________________ 20 applicable standard of care. Best Evidence Rule--document 21 speaks for itself; Beyond the scope 22 of the Summary Judgment Motion. 23 8. Malmquist Decl., pg. 2: The 8. Hearsay (Evid. Code § 1200); 8. Sustained: 24 above failures to comply with the Speculation; Lack of personal __________________ 25 applicable standards of care knowledge (Evid. Code § 702(a)); __________________ 26 caused Mr. Thik considerable Conclusory; Improper Expert Overruled: 27 and unnecessary pain and Opinion (Evid. Code §803); __________________ suffering and set in motion a Argumentative; Lacks foundation; __________________ Page: 4 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT 1 series of events that caused him Best Evidence Rule--document 2 to have a diminished quality of speaks for itself; Beyond the scope 3 life. of the Summary Judgment Motion. 4 9. Malmquist Decl., pg. 2: Due 9. Hearsay (Evid. Code § 1200); 9. Sustained: 5 to a broken endodontic file being Speculation; Lack of personal __________________ 6 forced into the bone inside his knowledge (Evid. Code § 702(a)); __________________ 7 tooth Mr. Thik should have been Conclusory; Improper Expert Overruled: 8 sent to an Oral Surgeon to have Opinion (Evid. Code §803); __________________ 9 the file removed soon after it was Argumentative; Lacks foundation; __________________ 10 broken off inside his person. Not Best Evidence Rule--document 11 ensuring it’s removal was speaks for itself; Beyond the scope 12 egregious. of the Summary Judgment Motion 13 14 10. Malmquist Decl., pg. 3: 10. Hearsay (Evid. Code § 1200); 10. Sustained: 15 Furthermore since Dr. Gabriel Speculation; Lack of personal __________________ 16 did not chart anything at the time knowledge (Evid. Code § 702(a)); __________________ 17 of completion or soon thereafter Conclusory; Improper Expert Overruled: 18 it is the same as not being Opinion (Evid. Code §803); __________________ 19 completed at all. If he was Argumentative; Lacks foundation; __________________ 20 charting by exception then he Best Evidence Rule--document 21 missed the mark even further by speaks for itself; Beyond the scope 22 not charting the breakage of the of the Summary Judgment Motion 23 file at the time it occurred. 24 11. Malmquist Decl., pg. 3: Mr. 11. Hearsay (Evid. Code § 1200); 11. Sustained: 25 Thik had no idea that this Speculation; Lack of personal __________________ 26 endodontic metal broken file was knowledge (Evid. Code § 702(a)); __________________ 27 left inside his tooth due to a lack Conclusory; Improper Expert Overruled: of proper assessment and care Opinion (Evid. Code §803); __________________ Page: 5 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT 1 that should be received in an Argumentative; Lacks foundation; __________________ 2 outpatient dental setting. The Best Evidence Rule--document 3 assessment and treatment of Pera speaks for itself; Beyond the scope 4 Thik by Samuel Gabriel D.D.S. of the Summary Judgment Motion 5 was below the standard of care. 6 As a result of a lack of consistent 7 and competent dental care, the 8 plaintiff’s condition became 9 acute and caused him years of 10 pain and suffering. 11 12. Malmquist Decl., pg. 2 16: I 12. Hearsay (Evid. Code § 1200); 12. Sustained: 12 hold each of these opinions to a Speculation; Lack of personal __________________ 13 reasonable degree of medical and knowledge (Evid. Code § 702(a)); __________________ 14 dental probability. Conclusory; Improper Expert Overruled: 15 Opinion (Evid. Code §803); __________________ 16 Argumentative; Lacks foundation; __________________ 17 Best Evidence Rule--document 18 speaks for itself; Beyond the scope 19 of the Summary Judgment Motion 20 21 22 Respectfully submitted, Dated: January 29, 2021 BRIAN P. KAMEL & ASSOCIATES 23 24 By: Brian P. Kamel, Esq. 25 Yee Lam, Esq. Emily R. Barcenas, Esq. 26 Attorneys for Defendant, SAMUEL GABRIEL, D.M.D. 27 Page: 6 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT PROOF OF SERVICE 1 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 2 I am employed in the County of Los Angeles, State of California. 3 I am over the age of 18 and not a party to the within action; my business address is 4 12400 Wilshire Boulevard, Suite 1150, Los Angeles, California 90025. 5 On January 29, 2021, I served the foregoing document described as: 6 OBJECTIONS TO DECLARATION OF JAY P. MALMQUIST, D.M.D. IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION 7 FOR SUMMARY JUDGMENT 8 On the interested parties in this action by placing [X] true copies [] the original thereof enclosed in sealed envelopes addressed as follows: 9 Jeremy M. Dobbins, Esq. Richard S. Salinas, Esq. 10 Law Office of Jeremy M. Dobbins Carol A. O’Neil, Esq. 1225 E. Divisadero Street SALINAS LAW GROUP 11 Fresno, CA 93721 8405 North Fresno Street, Ste. 150 12 Attorney for Plaintiff Fresno, CA 93720 Attorneys for Co-Defendant 13 [ ] (BY REGULAR [X] EXPRESS MAIL) I caused such envelope(s) to be deposited in a 14 designated "OUT" box in the office of my employer, following this business' ordinary practice, with which I am readily familiar. On the same day correspondence is placed for collection and 15 mailing it is deposited in the ordinary course of business with the United States Postal Service and/or FedEx. (C.C.P. Section 1013 and 1013a). If the box for express mail is checked, the 16 method of service was reasonably calculated to reach the above recipients by the close of the next business day. 17 [ ] (PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the 18 addressee. 19 [ X] (BY EMAIL) Pursuant to an e-service agreement between the parties, I caused a copy of such documents to be served by email to the email addresses. 20 [X] (State) I declare under penalty of perjury under the laws of the State of California that the 21 above is true and correct. 22 Executed on January 29, 2021, at Los Angeles, California. 23 24 Yee Lam, Esq. 25 26 27 Page: 7 OBJECTIONS TO DECLARATION OF JAYPROOF OF SERVICE P. MALMQUIST, D.M.D. RE PLAINTIFF’S OPPOSITION TO DEFENDANT, SAMUEL GABRIEL, D.M.D.’S MOTION FOR SUMMARY JUDGMENT