Filed 8/24/23 Yoder v. Okhovat CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

JANINE M. YODER

, Plaintiff and Appellant

,

v.

MAHYAR OKHOVAT et al.

Defendants and Respondent s , B320945

(Los Angeles County Super. Ct. No. 20STCV00442 )

APPEAL S from the judgment of the Superior Court of
Los Angeles County, Bernie C. LaForteza

, Judge. Affirmed. Janine M. Yoder, in pro. per., for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza

, Nicole F. DeVanon;
Schaeffer Cota Rosen

, James C. Schaeffer and Dana A. Garber
for Defendant s and R espondent s

.

________________________________2 Plaintiff Janine M. Yoder sued defendants Mahyar Okhovat, M.D., and Dr. Mahyar Okh o vat, M.D., Inc. (collectively, defendants) for medical malpractice. The defendants successfully moved for summary judgment, and the court thereafter entered judgment in their favor. Plaintiff appealed. W e affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY On January 7, 2020, plaintiff , acting in propria persona, filed a complaint in the superior court against defendants alleging a cause of action for negligence and medical malpractice. She alleged that on January 8, 2019, Dr. Okhovat “negligently, carelessly, [and] recklessly ” conducted an e lectromyography

test (EMG) on plaintiff that “damag[ed] her left ankle and foot .” According to plaintiff, Dr. Okhovat forcefully twisted her
left foot and ankle with both hands inwardly while performing the EMG of her left leg, at which point she heard a pop and felt excruciating pain in her left foot and ankle. She asserts that, as
a result of the incident, she continues to experience severe pain in her left foot and ankle and has developed acute tendinitis and complex regional pain syndrome (CRPS).

A. Defendants’ Motion for Summary Judgment On February 22, 2021, defendants filed a motion for

su mmary judgment

. The motion was based on the alternative grounds that there is no triable issue of material facts as to whether (1) Dr. Okhovat breached the applicable standard of care
and (2) if Dr. Okhovat breach ed a duty of care, his conduct did

not cause plaintif

f ’s injuries , and that defendants are entitled to judgment as a matter of law

.3 Defendants supported the motion with the declaration
of Peter

- Brian Andersson, M.D., a neuro logist with experience
in performing EMGs and diagnosing and treating patients with
CRPS

. Dr. Andersson reviewed plaintif f ’ s deposition testimony
and medical records

. Dr. Andersson opined “ to a reasonable degree of medical probability, that no conduct on the part of Dr. Okhovat caused

or contributed to any injury to [plaintiff] or aggravated any

pre

- existing problem or injury. ” Dr. Andersson further opined that, if Dr. Okhovat did “manipulate [plaintif f ’ s] left ankle
and foot during the EMG study, this would not have cau sed

or contributed to the plaintif f ’ s claimed injuries, including her allegation that she has developed CRPS involving her left leg,
ankle and foot. ”
Dr. Andersson explained that a n EMG study measures muscle response or electrical activity in response to n erve stimulation of the muscle. The study is conducted with needle
electrodes , which are inserted through the skin into the patient’s
muscles. An EMG measures muscle activity while at rest and while contracting by measuring the electrical activity picked up by the electrodes on an oscilloscope. According to Dr. Andersson,
the data from Dr. Okhovat ’s EMG of plaintiff showed “ normal
test results ,” which “ rule out that [plaintiff] suffered any type of acute injury to her left leg, including her foot and ankle, immediately before and at the time that this EMG was performed

. ” Dr. Andersson further stated that “ i f Dr. Okhovat
h ad caused trauma to [plaintif f ’s] left foot, ankle or leg at the time of her EMG, this study could not have been completed.
Trauma would have caused injury to the muscles which would have prevented their contraction. This would have prevented4

the completion of this EMG [and]

. . . precluded normal test findings on the EMG. ”
Dr. Andersson also relied on records concerning plaintif f ’s
visit to the emergency room at West Hills Medical Center
i mmediately a fter the EMG. According to these records, plaintiff complained of a possible deep vein thrombosis or blood
clot , which she believed may have developed as a result of a n airp lane flight she took two days prior

, and of pain as a result
of “a nerve test performed” earlier that day

. She complained of pain and swelling in both lower extremities. A physician noted “[m]ild swelling to [plaintif f ’s] right lower extremity” and “[t]e nderness to palpation to the left region of the hamstring.” The hospital’s records, however, do not indicate any problem
with her left ankle or foot. An X

- ray of her left ankle was
“normal

, ” and the physician’s impression of radiological lab
results concerning plaintif f ’s left ankle state only: “Negative
examination.” A ccording to Dr. Andersson, t he se records do not indicate “that she sustained any injury to her left ankle or foot[,] such as swelling, redness, bruising or warmth.” The day after the incident with Dr. Okhovat, plaintiff was examin ed at Mission City Community Network medical clinic

. According to the records of that visit, plaintiff was seen “for [v]ertigo

- like symptomatology.” The records of that visit include
no reference to any problem with her left leg, foot, or ankle. According to Dr. Andersson, the absence of any complaint by plaintiff concerning her “ left leg, foot or ankle pain or problems ” the day after the incident with Dr. Okhovat is “i nconsistent
of someone who suffered a traumatic injury to the left foot and ankle the day before.”5 On January 10, 2019

, plaintiff presented at Forward
medical clinic

. Plaintiff complain ed of the pain she experienced during the EMG in Dr. Okhovat’s office two days before

. The
records from Forward indicate that the treating physician found “[n]o redness, warmth, swelling or rash,” and “[n]o evident deformity.” The “[o]nly area of some tenderness i s plantar surface of foot arch, but no redness or swelling there either.” On January 22, 2019, two weeks after the EMG

, plaintiff
underwent MRIs of her left foot, left ankle , and “ left tibia/fibula.”
These MRI s showed plaintiff suffered from “mild Achille s tendinitis, a mild sprain of the superficial and deep fibers of the deltoid ligament complex and mild chronic sprain of the anterior talofibular ligament.” According to Dr. Andersson, “ none of
these conditions could have been caused by the incident alle ged by the plaintiff. The Achilles tendon connects the calf muscle
in the back of the leg to the heel bone. Achilles tendonit i s is a chronic condition caused by overuse. It is common in athletes
such as runners. It is highly unlikely that it could have been caused by a single, inward twisting motion as alleged by [plaintiff]

. The deltoid or medial ligament is a band that connects
the lower leg bone (tibia) to the inner side of the ankle. It is

a strong structure. Traumatic injuries to this ligame nt almost always occur when the ankle is twisted forcefully in an outward direction, not in an inward direction as alleged in this instance.
The anter i o r [ ] fibular ligament is located at the lateral aspect of
the ankle and connects the fibula to the talus of the ankle. The mild chronic sprain of this ligament as described in the MRI of January 22, 20 19 means that this condition was the result of a recurring giving way of the lateral side of the ankle and repeated6

ankle sprains. Such a condition develops over an extended period of time, and is not the result of a single incident. ”
Dr. Andersson reviewed additional re cords of consultations
and examination s with various medical professional s occurring
after plaintif

f ’s January 2019 MRIs . Although some of these
records refer to plaintif f ’s complaints of left leg, foot, and ankle pain or swelling

, none indicate a diagnosis of CRPS or attribute her pain or swelling to Dr. Okhovat’s conduct.
On April 1 0 , 2019
, further MRI s were conducted of plaintif f ’s left foot and ankle. The MRI of the left foot was described as “unremarkable, showing no stress f r actures, no F r eiberg infractions, no soft tissue masses and everything intact.”
The MRI of her left ankle , like the previous MRI on January 22, 2019, indicated “mild Achilles tendinitis, mild sprain of the superficial and deep fibers of the deltoid ligament complex
and minimal to mild chronic sprain of the anterior talofibular ligament.” Another MRI of plaintif f ’s left foot

, conducted on May 17, 2019 , “was normal without any pathology noted.” Dr. Andersson further noted that the injuries allegedly
“caused by Dr. Okhova t are subjective in nature, not confirmed by objective findings, are contradicted by [plaintif f ’s] physical examinations, [and] are inconsistent and fluctuate .” Moreover, “there is also no evidence of wasting or lost reflexes to [plaintif f ’s] lower extrem ities, which is inconsistent with all of her complaints.” Her complaints, he explained, “demonstrably
have a psychogenic component.”
As to plaintif

f ’s claim that she has developed CRPS

as a result of Dr. Okhovat’s conduct, Dr. Anders s on concluded that, “ the medical records demonstrate to a reasonable degree
of medical probability plaintiff does not suffer from CRPS to her7

left leg, ankle and foot. ” According to Dr. Andersson

, “ CRPS is

a diagnosis of exclusion, meaning no other alternative diagnosi s can explain the patient ’ s symptoms. CRPS is diagnosed using the very stringent Budapest Criteria. Under this criterion, the patient must have at least [two] signs and [three] symptoms from [four] categories. The [four] categories are sensory

. . . ,

v asomotor

. . . , sudomotor

. . . , and motor/trophic

. . . . ”
Dr. Andersson explained that plaintif f ’s medical records do not
indicate tha t any medical provider had applied these criteria

, and plaintiff “ has only ever complained of symptoms from

one category (motor) and these symptoms of weakness and restricted range of motion were entirely subjective (without objective evidence to corroborate [,] such as wasting or reflex abnormalities) .”
Dr. Andersson concluded that “ to a reasonable degree of
medical probability, nothing Dr. Okhovat did or did not do caused
or contributed to the plaintif f ’ s alleged injuries, including but not limited to, her alleged problem with CRPS of the left foot, ankle and leg .”

B. Plaintif

f ’s O pposition to S ummary J udgment

Plain tiff , still acting in propria persona, filed opposition to the motion for summary judgment supported by her declaration
and the declarations of Steve Fr l ekin, Janet J ohnson, Curtis Johnson, and Andrew Portenstein

. Plaintiff did not file any objections to Dr. Andersson’s declaration. 1

1 As the trial court observed, plaintiff stated objections in her separate statement of disputed material facts. The court ruled that it would not rule on the objections because objections made in opposition to a mot ion for summary judgment must8 In her declaration, plaintiff stated that she “can pro[ve] that Dr[.] Okh o vat did for ce her left foot and ankle inward
and he did say ‘o pps [ sic ] I didn’t mean to do that. ’ ” Plaintiff
states that Dr. Andersson ’s declaration and the medical records defendants rely on do not refer to her left foot and ankle , and
that she will obtain declarations from doctors who will discuss the injury to her left foot and ankle.
Fr l ekin ’s declaration state s that on January 8, 2019, he drove plaintiff to Dr. Okhovat’s office and was in the room with plaintiff and Dr. Okhovat during the EMG test

. Okhovat tested plaintif f ’s right leg and began to test the left leg. As he “reached the lower part of [plaintif f ’s] le g, at the ankle area, he asked [plaintiff] to move her left foot toward the right. [Plaintiff] moved her foot. Dr. Okhovat asked, ‘Is that as far as you can move it?’ [Plaintiff] said, ‘Yes.’ Dr. Okhovat, without saying anything,
then took hold of [pla intif f ’s] foot and abruptly and forcefully pushed her foot inward to the right. Instantly, [Fr l ekin] heard

a large ‘POP’ and [plaintiff] SCREAM [ ED ] with tears flowing. Dr. Okhovat said, ‘Oh! I didn’t mean to do that!’ ” (Boldface omitted.)
Fr l ekin furt her states that Dr. Okhovat asked plaintiff i f
he should continue with the test, and plaintiff responded, “ ‘ Yes,
I just want it over with ? ’ ” Dr. Okhovat then “left the room and

be filed separately, not made in the separate statement. (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 .) The objections were also improper, the court stated, because they were objections to defendants’ material facts, not to particular evidence. On appeal, plaintiff does not assert that the court should have ruled on and sustained her objections.9

never came back.” After the test, plaintiff “ was unable to stand ”
or put pr essure on her left foot. Fr l ekin then took plaintiff to

a hospital emergency room. Janet Johnson and Curtis Johnson are plaintif f ’s mother and stepfather

. According to their declarations, plaintiff ha s had

surger y on her right leg on four occasions and two surgeries on her back

. During a visit in December 2018, plaintif f ’s mother observed plaintiff walking and recalled that p laintif f ’s left side

was not injured at that time

. Plaintif f ’s mother and stepfather saw plai ntiff again in 2020, and observed that “she was not doing well” and “could not walk on her left foot .” The injury to plaintif f ’s left foot , they conclude, happened in 2019, between
the two visits.
Andrew Portenstein state s that he took plaintiff to the hospital and doctor appoint ments “[a]s of March 21, 2016, and other dates in question.” On one occasion, plaintiff tripped
and fell in a parking lot on the way to a doctor’s appointment. On June 29, 2021

— the date set for the hearing on th e defendants’ motion

— the court granted plaintif f ’s request for

a continuance to allow her to submit further declarations in support of her opposition. On October 6, 2021, plaintiff filed a further opposition

. She
submitted her supplemental declaration, at taching as exhibit s:

a letter from Leonora Fihman , DPM ; certain documents that appear to have been prepared by or for Vikram Singh , M.D., and
Eric Wee , DPM ; and a n unverified statement by Jo n athan Frank

, M.D.
Dr. Fihman , in a letter not signed under penalty of perjury, described plaintiff as having symptoms “consistent with complex regional pain syndrome .” Dr. Fihman does not opine on whether10

Dr. Okhovat breached a standard of care or whether his conduct
caused any inju ry to plaintiff or the pain plaintiff suffers

. The documents from Dr. Singh’s office recite that plaintiff
had automobile accidents in 2016 and 2018 and that she
underwent an EMG/nerve conduction study on January 18, 2019. Plaintiff reported to Dr. Singh that , “during the study, .

. . her left ankle was injured and she has had increasing pain in her left
ankle since then

. That is the second reason why she is unable

to ambulate because of the pain in her left ankle and requiring her to use [a] scooter.” Under the heading, “ medical causation ” (boldface and capitalization omitted), Dr. Singh states that “the patient’s signs and symptoms and the diagnostic findings were

cause d by the accident suffered by the patient.” The report

, which is not signed under penalty of perjury , does not include

any opinion that Dr. Okhovat’s conduct is a cause of plaintif f ’s
condition

. Plaintiff also included a progress note

, dated April 1,
2019
, on letterhead of Jonathan Frank, M.D. T he unsigned report refers to the automobile accident that occurred in February 2018, and does not mention the incident with
Dr. Okhovat. The documents purported to be from Dr. Wee
do not inc lude any indication of what might have caused any problems with plaintif f ’s left leg or ankle. The Dr. Frank and
Dr. Wee documents are not signed under penalty of perjury.

C. Court’s R uling on the M otion

On October 14, 2021, defendants filed an objection to
Dr. Fihman ’s statement on the grounds, among others, that it lacks foundation and was not signed under penalty of perjury. On October 20, 2021, the court hear d the motion for summary judgment. The court sustained the defendants’11

objection to Dr. Fihman’s statement and granted the motion for summary judgment

. The court determined that the defendants had met their burden of demonstrating that Dr. Okhovat did not breach the applicable standard of care , and did not cause or contribute to plaintif

f ’s injuries, and plaintiff had failed to meet her burden of showing the existence of a triable issue as to either
element.
On November 3, 2021, plaintiff filed a motion for
reconsideration , which the court denied on March 10, 2022

. On March 23, 2022, the court entered judgment in favor of
defendants

. Counsel for defendants served notice of entry of the judgment on March 29, 2022. Plaintiff filed a notice of appeal on May 23, 2022

. 2

DISCUSSION

A. Summary Judgment S tandards A trial court properly grants summary judgment when the papers submitted establish that no triable issue of material fact exists, and the moving party is entitled to judgment as a matter
of law. ( Code Civ. Proc., § 437c, subd. (c).) We review the trial

c ourt ’ s decision de novo, liberally construing a plaintif f ’ s evidence while strictly scrutinizing the moving defendant ’ s showing.

2 The notice of appeal states that the appeal is taken from

a judgment or order entered on Mar ch 10, 2022

— the date of the order denying plaintif f ’s motion for reconsideration. An order denying a motion for reconsideration, however, is not appealable. (Code Civ. Proc., § 1008, subd. (g) ; Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.Ap p.5th 935, 937 , fn. 1 .) We construe the notice of appeal as taken from the judgment entered on March 23, 2022. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 .)12

( Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355

– 356.) We consider all evidence offered by the parties in connection with
the motion (except that which the court properly excluded) and
the inferences the evidence reasonably supports. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 84 3 ( Aguilar ); Artiglio v. Corning Inc . (1998) 18 Cal. 4th 604, 612.)
D efendant s meet thei r burden of showing that a cause
of action has no merit if they show that “one or more elements
of the cause of action,

. . . cannot be established, or that there
is a complete defense to th e cause of action.” ( Code Civ. Proc., § 437c, subd. (p)(2); Aguilar

, supra , 25 Cal.4th at p. 849.) Once

a defendant has carried that burden, the burden shifts to the plaintiff “to show that a triable issue of one or more material
facts exists as to that cause of action.” ( Code Civ. Proc., § 437c, subd. (p)(2); Ag uilar

, supra , 25 Cal.4th at p. 849.) “ There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in
favor of the party opposing the motion in accordance with the applicable st andard of proo f ” at trial. ( Aguilar

, supra , 25 Cal.4th at p. 850; accord, Lugtu v. California Highway Patrol (2001)
26 Cal.4th 703, 722.) The plaintiff may not rely upon the allegations in the pleadings, but must set forth specific facts. (§ 437c, subd. (p)(2); Aguilar

, supra , 25 Cal.4th at p. 849.)

B. Analysis

Plaintif f ’s claim of medical malpractice required her

to establish four elements: (1) the defendants’ duty to use
the skill, prudence, and diligence that other members of the profession commonly possess and exercise

, (2) a breach of the duty

, (3) a proximate causal connection between the alleged negligent conduct and the injury

, and (4) resulting loss or13

damage. ( Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 ; Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Here, defendants asserted that there is no triable issue of
material fact as to the second and third elements : breach of duty and causation. Because , as discussed below, we conclude that summary judgment is proper based on the issue of causation, we do not reach the breach of duty issue. When, as here, the determination of c ausation in a
medical malpractice case involves matters beyond a layperson ’ s knowledge , causation “must be proven within a reasonable medical probability based upon competent expert testimony

. ” ( Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,
402

. ) When a medical malpractice defendant supports a motion for summary judgment with an expert declaration, the defend ant

“ ‘ “is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” ’ ” ( Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 .) Defendants supported their motion for summary judgment
as to causation with Dr. Ander s s on’s declaration , to which plaintiff asserted no objection

. Dr. Andersson’s opinion that
Dr. Okhovat’s conduct did not cause or contribute to the injuries of which plaintiff complains rests on facts set forth in plaintif f ’s
medical records or, based on Dr. Andersson’s unchallenged expertise, inferred from the records . According to Dr. Andersson,
the EMG study itself showed “normal test results ,” which
could not have been obtained if plaintiff suffered the trauma
she alleges. An X

- ray of plaintif f ’s ankle obtain ed the same day of the EMG study was “normal” and the emergency room
records provide no indication of an injury to plaintif f ’s left ankle
or foot. Dr. Andersson also noted that p laintif f ’s apparent failure14

to make any complaint abo ut her left leg or ankle the following day at a medical clinic is “inconsistent of someone who suffered

a traumatic injury to the left foot and ankle the day before.” Subsequent MRI s revealed , at most, only conditions that
would be caused by events other than Dr. Okhovat’s conduct.
Dr. Andersson explained that m ild Achilles tendonitis, for example, is a chronic condition, common to athletes and runners,

cause d by overuse , not a single, inward twisting motion as alleged by plaintiff

. No r is there an y evidence in plaintif f ’s
extensive medical records “of wasting or lost reflexes to [plaintif f ’s] lower extremities,” which Dr. Andersson explained
“is inconsistent with all of her complaints.” Lastly, Dr. Andersson pointed to the absence of any diagnosis in any medical record that plaintiff suffers from CRPS in her left leg, foot, or ankle.
Dr. Andersson’s declaration provides “a reasoned explanation of why the underlying facts lead to [his] ultimate
conclusion” that Dr. Okhovat’s conduct during the EMG study did not cause the injury plaintiff alleges. ( Bushling v.
Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 .)
The declaration is thus sufficient to support the defendants’ initial summary judgment burden of showing that plaintiff
cannot establi sh the element of causation. Plaintiff was

t herefore required to establish by expert declarations that a triable issue of material fact exists as to the issue of causation.
Plaintiff has failed to do so. The court sustained the defendants’ objections to t he statement plaintiff submitted from
Dr. Fihman based on lack of foundation and Dr. Fihman’s failure to verify the statements under penalty of perjury. Plaintiff
does not challenge this ruling on appeal. As the trial court noted,

even if Dr. Fihman’s statement was admissible , the statement15

provides no evidence to support plaintif f ’s “ case that defendants caused plaintif

f ’ s injuries .” Plaintiff offered no other evidence
sufficient to create a triable issue as to causation. In her opening bri ef on appeal, plaintiff argues that she “had a ‘witness in the room’ during the [EMG] test [,] so there is proof of wrongdoing by [Dr.] Okhovat.” (Capitalization omitted.) She is referring to Fr l ek i n, who was present during the EMG study and stated that D r. Okhovat “ abruptly and forcefully pushed [plaintif

f ’s] foot inward to the right .” Fr l ek i n “ heard

a large ‘POP

, ’ ” plaintiff scream ed and cr ied , and Dr. Okhovat

sa id , “ ‘Oh! I didn’t mean to do that!’ ” (Boldface omitted.)
Even if Fr l ek i n’s declaration was sufficient to show that
Dr. Okhovat breached a duty of care, it does not create a triable
issue as to whether Dr. Okhovat ’s actions caused the ongoing pain, tendonitis, and CRPS for which plaintiff seeks relief. Under a heading in pla i ntif f ’s opening brief that reads, “ d efendant /r espondent Okhovat cause d” (boldface
& capitalization omitted), plaintiff points to evidence of
the injuries she claims Dr. Okhovat caused. These include :

“ A chilles tendinitis ligament,” “mild sprain of the superficial deep fibers of the deltoid ligament complex ligament ,” “mild chronic sprain of the anterior talofibular ligaments ,” and
“a slightly hypertrophied peroneal tubercle of the calcaneus.” (Capitalization omitted.) Even if plaintiff suffers from th ese ailments , however, she has failed to produce admissible evidence
that Dr. Okhovat caused any of them. For all the foregoing reasons, defendants have shown
that there is no triable issue of material fact as to the element
of causation and that they are entitled to judgment as a matter
of law.16 DISPOSITION The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

CHANEY, J.

BENDIX, J.