Filed 1/22/24 Simonyans v. Torbati CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

RITA SIMONYANS,

Plaintiff and Appellant,

v.

KARMAN TORBATI,

Defendant and Respondent.

 B314013

 (Los Angeles County

 Super. Ct. No. 

 19STCV46544)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Edward B. Moreton, Judge. Affirmed.

SLC Law Group and Louis F. Teran for Plaintiff and 

Appellant.

Schmid & Voiles, Denise H. Greer and Patrick W. Mayer 

for Defendant and Respondent.

_______________________________________________
2

One week after giving birth, appellant Rita Simonyans 

suffered a coronary artery dissection and heart attack. She sued

her obstetrician, respondent Kamran Torbati, M.D., for medical 

malpractice. Torbati moved for summary judgment, arguing that 

he did not cause her injury. The trial court granted the motion

and entered judgment for Torbati.

After independently reviewing the record, we conclude that 

there are no triable issues of material fact. Torbati showed with 

expert opinion supported by authenticated medical records that a 

sudden, spontaneous coronary dissection is not predictable or 

preventable, and is asymptomatic until it occurs. Simonyans did 

not refute this evidence, but attempted to present an expert 

opinion based on unauthenticated hospital records. The opinion 

based on hearsay has no evidentiary value, lacks foundation, and 

is speculative. We affirm.

FACTS AND PROCEDURAL HISTORY

Simonyans Gives Birth

The genesis of the case is undisputed. Simonyans first saw 

Torbati in 2017, when she sought fertility treatment at his clinic. 

After she became pregnant in 2018, she saw Torbati regularly.

1 

At visits, her blood pressure and heart rate were measured.

It is undisputed that when Simonyans came to the hospital 

to give birth, she had a regular heart rate. At admission on 

October 6, her blood pressure was 113/61, with a heart rate of 68. 

The baby was born on October 7. Measurements taken that day 

show blood pressure of 91/46, 106/55, and 124/57, and a heart

rate of 71, 64, and 62. On October 8, her blood pressure was

90/52, with a heart rate of 88. On October 11, she went to an

1 All further date references are to the year 2018.
3

emergency room complaining of severe rectal pain; when 

released, her blood pressure was 139/78, with a heart rate of 97.

Simonyans Suffers a Coronary Artery Dissection

It is undisputed that on October 15, Simonyans went to the

hospital complaining of “acute onset of chest pain and shortness 

of breath.” Cardiac surgery was performed to repair an “acute 

left main dissection.” A discharge summary describes a 

“spontaneous coronary artery dissection”; myocardial infarction; 

acute pulmonary edema; acute ischemic cardiomyopathy; and 

acute respiratory failure.

Simonyans Files Her Lawsuit

Simonyans filed suit for malpractice arising from Torbati’s 

prenatal medical care. She alleges that during the final months 

of her pregnancy, and after giving birth, he failed to properly 

evaluate her complaints of elevated heart rate, chest pains, 

shortness of breath, fatigue, and other symptoms, informing her 

that the symptoms were normal and would go away after she 

gave birth. Simonyans claims she suffered a heart attack

because his medical treatment fell below the standard of care. 

Torbati answered and denied the claims.

Torbati’s Motion for Summary Judgment

In a motion for summary judgment, Torbati argued that 

there is no triable issue of material fact whether his treatment of 

Simonyans caused her injury. Her discovery responses claim he 

“failed to diagnose and treat [her] health and physical condition 

during her pregnancy,” which “could have avoided a heart 

attacked [sic] and open heart surgery she endured around one 

week after giving birth.” However, the evidence shows she had a 

sudden and spontaneous arterial dissection that was not caused 

by Torbati’s obstetric care during her pregnancy.
4

Cardiology expert Michael L. Chaikin submitted a 

declaration for Torbati. Dr. Chaikin reviewed Simonyans’s

medical records, which showed normal blood pressure 

measurements throughout her pregnancy, including when she 

gave birth on October 7 and upon discharge from the hospital the 

next day. None of the symptoms claimed in her pleading indicate 

an impending coronary artery dissection.

Dr. Chaikin wrote that Simonyans went to the emergency 

room on October 15. Authenticated medical records show she 

“was in her usual state of good health” when “she had sudden 

onset of severe chest pain and shortness of breath” after a 

pediatric appointment. Tests “showed a significant dissection in 

the left main coronary artery.” Immediate surgery was 

performed, revealing an acute dissection of the artery. Hospital 

records describe a “spontaneous coronary artery dissection,”

myocardial infarction, acute ischemic cardiomyopathy, 

pulmonary edema, and hypoxic respiratory failure.

Dr. Chaikin declared, “[A] spontaneous coronary artery 

dissection is neither predictable nor preventable” and “there are 

no symptoms a patient would experience before the coronary 

artery dissection occurs. There is no testing of any type that 

could have been done that would have disclosed any issue or 

problem with the plaintiff’s coronary arteries with respect to an 

upcoming spontaneous coronary dissection” that suddenly 

occurred on October 15. He opined that Torbati “did not cause or 

contribute” to Simonyans’s injury or damage.

Simonyans Opposes Torbati’s Motion

In opposition to Torbati’s motion, Simonyans declared that 

she first experienced a sudden onset of chest pain and shortness 

of breath on September 9, a month before giving birth. She was 
5

evaluated at the hospital obstetrics unit. Afterward, Torbati 

“assured me that I was fine and that my symptoms were very 

normal.” She was discharged without being evaluated or treated 

by a cardiologist.

Cardiologist Uri Elkayam submitted an expert declaration 

in support of Simonyans. He reviewed her medical records, 

including her hospital visit on September 9 when she had 

“sudden onset of shortness of breath that was worse when she 

tries to lie down.” Torbati discharged her from the hospital 

without ordering X-rays, an EKG, or a CT scan, and without 

having her consult a cardiologist. Dr. Elkayam stated that when 

Simonyans went to the hospital on October 15 “with sudden onset 

of severe chest pain and shortness of breath,” she had a 

significant dissection requiring surgical repair.

Dr. Elkayam concluded that it is reasonably probable

Simonyans “suffered a coronary dissection for the first time on 

September 9.” If Torbati had referred her to a cardiologist that 

day, “her coronary dissection could have been identified and 

treated,” which “could have reduced the chance of a reoccurring 

coronary dissection, such as the one she suffered on October 15.” 

Dr. Elkayam opined that the treatment she received from Torbati 

on September 9 was below the standard of care.

Simonyans’s medical records for September 9 show she was 

seen at the hospital by a gynecologist. She complained of 

shortness of breath, especially while lying down, and heartburn. 

Her blood pressure was 115/80; pulse was 79. She had no fever 

and denied a history of cardiovascular issues. The doctor opined 

that her shortness of breath was “air hunger” arising from

pregnancy. He discussed her case with Torbati and sent her

home with emergency room warnings.
6

Based on Dr. Elkayam’s declaration, Simonyans argued 

that her coronary dissection “was spontaneous but not entirely 

unpredictable nor unpreventable.” Torbati failed to diagnose her 

first coronary dissection on September 9. Had he sent her to a 

cardiologist, her condition could have been identified and treated 

before it recurred on October 15. Simonyans argues that this 

raises a triable issue as to whether Torbati negligently failed to 

refer her to a cardiologist.

Torbati’s Rebuttal

Torbati argued that Dr. Elkayam did not show that he 

caused Simonyans’s October 2018 coronary dissection or heart 

attack. Instead, Dr. Elkayam offered only the possibility that 

some unidentified treatment might have “reduced the chance” of 

it, without acknowledging that Simonyans was diagnosed with an 

acute (sudden and spontaneous) coronary dissection in October, 

with no support for his conclusion that she suffered one in 

September. Dr. Elkayam does not describe what tests or 

treatment might have reduced the risk of a dissection.

Dr. Elkayam did not refute Dr. Chaikin’s opinion that an 

acute coronary dissection cannot be predicted or prevented: 

Simonyans had no symptoms because there are no symptoms. No 

tests would have disclosed an upcoming spontaneous dissection. 

Simonyans created no triable issue that Torbati negligently 

caused her to suffer a coronary dissection. Absent a showing that 

Torbati was the legal cause of the injury, to a reasonable medical 

probability, a medical malpractice case cannot be established; a 

mere “possibility” is insufficient to establish a prima facie case.

The Trial Court’s Ruling

The court granted summary judgment. Focusing on the 

causation element, the court credited the opinion of Dr. Chaikin, 
7

who explained that Simonyans’s heart attack on October 15 

resulted from an acute, significant, sudden dissection of the 

coronary artery. A spontaneous dissection is not predictable or 

preventable, has no symptoms, and cannot be tested for before it 

occurs. The court cited Dr. Chaikin’s opinion that nothing 

Torbati did or failed to do caused Simonyans’s injury.

The court rejected the opinion of Dr. Elkayam, who 

“assumes Plaintiff suffered a coronary dissection on September 9, 

2018, without any evidence to support it, rendering his opinion 

without evidentiary value.” The court wrote, “None of Dr. 

Elkayam’s opinions are supported by a description of the facts on 

which they are based on or the reasoning that leads to his 

conclusion.” Further, he “resorts to speculation to argue that 

Defendant’s delay in referring Plaintiff to a cardiologist caused 

her October coronary dissection.” Dr. Elkayam did not create a 

triable issue as to whether Torbati caused Simonyans’s injuries. 

The court entered judgment for Torbati.

Simonyans’s Motion for Reconsideration

Simonyans sought reconsideration, arguing that the court 

did not liberally construe Dr. Elkayam’s declaration. His opinion,

based on his experience and reading of Simonyans’s medical 

history and symptoms on September 9, was not speculative.

In support of her argument, Simonyans offered a new

declaration from Dr. Elkayam, who offered further explanations 

why her shortness of breath on September 9 signified heart 

failure, when followed five weeks later by a coronary dissection. 

Dr. Elkayam opined that an evaluation would have defined the 

cause of Simonyans’s shortness of breath, “which was reasonably 

probable to have been a myocardial ischemia due to spontaneous 

coronary dissection.” Though Torbati believed that Simonyans’s
8

symptoms were associated with pregnancy, a cardiac event 

should have been excluded before she was discharged from the 

hospital on September 9, because it could have been treated with 

medication or implantation of a stent.

In opposition, Torbati argued that neither Simonyans’s

criticism of the court’s reasoning nor Dr. Elkayam’s supplemental 

declaration are grounds for reconsideration: It is not new law or 

new evidence. (Code Civ. Proc., § 1008.) He still does not offer 

facts showing that a delay arising from the September incident

caused Simonyans’s October heart attack.

The court denied the motion for reconsideration. First, it 

rejected Simonyans’s argument that it misinterpreted the law. 

Second, it rejected the supplemental declaration from Dr. 

Elkayam: There is no explanation for Simonyans’s failure to 

produce this evidence earlier and an expert cannot offer new 

opinions based on evidence that was previously available.

DISCUSSION

1. Appeal and Review

Summary judgment “shall be granted if all the papers 

submitted show that there is no triable issue as to any material 

fact and that the moving party is entitled to a judgment as a 

matter of law.” The judgment is appealable. (Code Civ. Proc., 

§§ 437c, subds. (c), (m), 904.1., subd. (a)(1).)

We independently examine the record to determine if 

triable issues of fact exist. (Johnson v. American Standard, Inc. 

(2008) 43 Cal.4th 56, 64.) Evidence presented in opposition to 

summary judgment is liberally construed. (Regents of University 

of California v. Superior Court (2018) 4 Cal.5th 607, 618.) 

Declarations supporting or opposing summary judgment must be 

based on admissible evidence. (Code Civ. Proc., § 437c, subd. (d); 
9

Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501 [a motion 

“cannot be defeated by statements of inadmissible evidence in the 

opposing affidavits”].)2

2. Ruling on Torbati’s Written Objections

The trial court overruled Torbati’s written objection that 

Dr. Elkayam relied upon unauthenticated hearsay. Torbati

renews his objection on appeal. We review evidentiary rulings for 

an abuse of discretion. (Shugart v. Regents of University of 

California (2011) 199 Cal.App.4th 499, 505.)

Hospital and medical records are hearsay. They may 

qualify under the business records exception to the hearsay rule

if properly authenticated. (Garibay v. Hemmat (2008) 161 

Cal.App.4th 735, 742.) “[W]ithout testimony providing for 

authentication of such records, [a doctor’s] declaration had no 

evidentiary basis. Consequently his expert medical opinion . . . 

had no evidentiary value” when offered in support of summary 

judgment. (Ibid.)

Torbati is correct that Simonyans’s September 9 records 

are hearsay. Dr. Elkayam has no personal knowledge of 

Simonyans’s medical treatment but must rely on her hospital 

2 In her reply brief, Simonyans argues, for the first time, 

that Torbati failed to present evidence related to the standard of 

care. Arguments cannot be raised for the first time in a reply 

brief. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 

Cal.App.5th 142, 157–158.) In any event, the trial court 

sustained Torbati’s objection that the standard of care is 

“irrelevant” because the only issue is causation. Simonyans’s 

failure to challenge the court’s relevancy ruling forfeits the claim. 

(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [a party who 

wishes to challenge a trial court evidentiary ruling on summary 

judgment must assert it in the appellate court].)
10

records. However, no custodian of records attested that the 

purported evidence was made in the regular course of business, 

at or near the time of the event, to its identity and mode of 

preparation, or its trustworthiness. (Evid. Code, § 1271.) As a 

result, Dr. Elkayam’s opinion, based on hospital records not 

properly before the court, has no evidentiary support. (Garibay v. 

Hemmat, supra, 161 Cal.App.4th at p. 743.)

3. Ruling on Motion for Reconsideration

In her motion for reconsideration after the trial court 

granted Torbati’s motion for summary judgment, Simonyans 

presented another declaration from Dr. Elkayam. In it, he 

embroidered upon his opinion that her shortness of breath on 

September 9 “is characteristic of heart failure.” For the first 

time, he suggested that she could have been treated with 

medication or implantation of a stent.

The trial court denied reconsideration. It rejected the new 

declaration, finding it inadmissible because Simonyans gave no 

explanation why the evidence was not produced at the original 

hearing. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 

1339; New York Times Co. v. Superior Court (2005) 135

Cal.App.4th 206, 212.) An expert declaration purporting to reach 

opinions based on evidence that was previously available is not 

“new” evidence. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 

246, 254–256.) The standard for reviewing a denial of 

reconsideration is abuse of discretion. (Id. at p. 255.)3

3 An order denying reconsideration is not separately 

appealable; however, if the underlying order is subject to review, 

denial of reconsideration may also be reviewed. (Code Civ. Proc., 

§ 1008, subd. (g).)
11

Although the ruling on reconsideration may be reviewed on 

appeal from the summary judgment ruling, Simonyans offers no 

argument or case authority showing that the trial court abused 

its discretion, thereby forfeiting any claim that it should have

permitted Dr. Elkayam’s new declaration. Because the trial 

court rejected the new declaration and Simonyans has not shown 

abuse of discretion, we cannot deem it admissible on appeal. 

Further, the new declaration lacks evidentiary value because it is 

based upon hearsay—the unauthenticated September 9 hospital 

records—as discussed in part 2 of this opinion, ante.

4. Causation in a Medical Malpractice Claim

“[I]n any medical malpractice action, the plaintiff must 

establish: ‘(1) the duty of the professional to use such skill, 

prudence, and diligence as other members of his profession 

commonly possess and exercise; (2) a breach of that duty; (3) a 

proximate causal connection between the negligent conduct and 

the resulting injury; and (4) actual loss or damage resulting from 

the professional’s negligence.’ ” (Gami v. Mullikin Medical Center 

(1993) 18 Cal.App.4th 870, 877.) Summary judgment is 

appropriate if the defendant “has conclusively negated a 

necessary element of the plaintiff’s case.” (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334.)

At issue here is the element of causation, which “ ‘must be 

proven within a reasonable medical probability based upon 

competent expert testimony. Mere possibility alone is 

insufficient to establish a prima facie case. [Citations.] . . .

There can be many possible “causes,” indeed, an indefinite 

number of circumstances which can produce an injury or disease. 

A possible cause only becomes “probable” when, in the absence of 

other reasonable causation explanations, it becomes more likely 
12

than not that the injury was a result of its action. This is the 

outer limit of inference upon which an issue may be submitted to 

the jury.’ ” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603

(Dumas).)

When a plaintiff complains of failure to diagnose, causation 

requires “ ‘expert testimony that if proper treatment had been 

given, better results would have followed.’ ” (Dumas, supra, 235 

Cal.App.3d at p. 1603; see, e.g., Burford v. Baker (1942) 53 

Cal.App.2d 301, 305–306 [failure to diagnose a hip injury caused 

a bone deformity that could have been avoided with prompt 

treatment]; Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 281 

[plaintiff showed a negligent X-ray reading caused more residual 

disability than would have occurred with proper diagnosis].)

A plaintiff must present evidence that further medical 

workup or tests would have produced a different result. “Absent 

such evidence, there is no causal link between any negligence by 

[the doctor] and any injury to plaintiff.” (Flores v. Liu (2021) 60 

Cal.App.5th 278, 301.) Sufficient evidence must allow an

inference that in the absence of the defendant’s negligence there 

is a reasonable medical probability that plaintiff would have 

obtained a better result. An expert opinion that tests might have 

helped is speculation, not substantial evidence. (Ibid.)

5. Causation in this Case

Torbati carried his burden on summary judgment by

making an initial showing that he did not do anything to cause 

injury to Simonyans. Simonyans does not dispute that her heart 

attack on October 15 was “the result of an acute, significant 

sudden dissection of the left main coronary artery and circumflex 

coronary artery.” It is undisputed that an emergency room 

physician noted “acute onset of chest pain and shortness of 
13

breath” after Simonyans “suddenly started having left-sided 

severe chest pain . . . shortness of breath and altered mental 

status, being drowsy and lethargic.” It is undisputed that a 

cardiologist wrote that Simonyans “was in her usual state of good 

health on October 15, 2018 when she had a ‘sudden onset of 

severe chest pain and shortness of breath.’ ” It is undisputed that 

a surgeon wrote that Simonyans “experienced an acute left main 

dissection extending into the circumflex and left anterior 

descending (artery).” Finally, it is undisputed that Simonyans 

“experienced a spontaneous coronary artery dissection.”

Torbati’s expert Dr. Chaikin opined that the obstetrician 

could not prevent a “sudden” and “spontaneous” coronary artery 

dissection, which is asymptomatic until it actually occurs. No 

tests that Torbati could have ordered would disclose an upcoming 

spontaneous dissection. This evidence met Torbati’s burden of 

showing that he did not cause injury: Nothing he could have 

done would have produced a better result for Simonyans.

The burden shifted to Simonyans to present admissible 

expert testimony that Torbati failed to diagnose her coronary 

ailment or refer her to a cardiologist for evaluation, and had he 

done so, a better result would have followed. Simonyans failed to 

make an adequate showing in this case.

Simonyans’s expert did not refute Dr. Chaikin’s statement 

that a spontaneous coronary artery dissection is not predictable 

or preventable. Instead, Dr. Elkayam opined that Simonyans 

suffered two coronary artery dissections, one on September 9 

(when she had shortness of breath in her eighth month of 

pregnancy) and one on October 15 (a week after she gave birth). 

Dr. Elkayam suggested that a cardiologist could have treated 
14

Simonyans on September 9 if, in fact, a coronary dissection 

occurred on that date.

As discussed above in part 2, Dr. Elkayam’s opinion relies

on Simonyans’s unauthenticated hospital records from 

September 9. His opinion is based on hearsay and has no 

evidentiary value.

In any event, the unauthenticated records do not bear out 

Dr. Elkayam’s hypothesis of a September coronary artery 

dissection. His opinion that shortness of breath showed a 

coronary artery dissection is speculative. Simonyans was 

released on September 9 and did not return with heart problems 

until October 15, after giving birth. Her blood pressure and heart 

rate throughout her pregnancy, including at delivery, gave no 

indication that a coronary event was underway. She gave birth 

and was discharged from the hospital without complications.

Dr. Elkayam offers no “reasoned explanation” how 

Simonyans could survive a coronary artery dissection in 

September and thrive in “her usual state of good health” for 

another five weeks—despite the stress of labor and delivery—

with no symptoms of heart failure or coronary disease. A medical 

expert opposing summary judgment must provide a reasoned 

explanation illuminating facts making it more probable than not 

that a negligent act was cause-in-fact of plaintiff’s injury.

(Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.) Dr. 

Elkayam’s initial declaration offers no explanation of what kind 

of treatment in September could have prevented Simonyans’s 

spontaneous coronary dissection in October.

Simonyans ignores the deficiencies in Dr. Elkayam’s initial 

declaration; she relies on his later declaration from her motion 

for reconsideration. As discussed in part 3, ante, we cannot 
15

consider Dr. Elkayam’s second declaration after the trial court 

rejected it under Code of Civil Procedure section 1008. Moreover, 

the new declaration continues to rely on unauthenticated hospital 

records. Simonyans did not establish the existence of a triable 

issue of fact with admissible evidence.

DISPOSITION

The judgment is affirmed. Torbati is entitled to his costs on 

appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.