Filed 7/29/16 Keehn v. La Jolla Cosmetic Laser Clinic CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DANIEL KEEHN, D068229

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2013-00062445-CU-PN-NC)

LA JOLLA COSMETIC LASER CLINIC

et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Reversed and remanded with directions.

Doucette Law Group and Jodi L. Doucette for Plaintiff and Appellant.

Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson and Sheila S. Trexler,

David P. Burke and Julie Ann Lowell for Defendants and Respondents.

Plaintiff and appellant Daniel Keehn sued defendants and respondents La Jolla

Cosmetic Laser Clinic (Clinic), Jasmine McLeod, M.D., and Mahsid Mani for

negligence, breach of contract, and "assault and battery," alleging he suffered permanent

injuries to his face, neck and chest after undergoing laser treatment at Clinic. The trial court granted summary judgment in defendants' favor, ruling the one-year statute of

limitations of Code of Civil Procedure1 section 340.5 barred Keehn's medical negligence

cause of action, and there was no admissible evidence supporting independent causes of

action for breach of contract or battery. On appeal, Keehn contends the court erred by

granting summary judgment because the limitations period for his medical negligence

claim was equitably tolled based on evidence he did not know he was permanently

injured or that malpractice had occurred but continued his treatment with defendants. He

further contends defendants intentionally concealed their malpractice from him and

allayed his concerns; and he pursued an alternative legal remedy for the harm that he had

suffered, requiring defendants be equitably estopped from asserting the statute of

limitations or equitably tolling the statute during that time. Keehn finally contends he

raised triable issues of fact as to his battery and breach of contract causes of action.

We reverse the summary judgment. As for Keehn's medical negligence claim, the

trial court erred by excluding Keehn's opposing expert declaration, and Keehn's evidence

raises triable issues of material fact as to his discovery of defendants' alleged medical

negligence, precluding summary judgment on statute of limitations grounds and also as to

whether their care and treatment fell below the standard of care. However, even taking

Keehn's summary judgment evidence as true, it is insufficient as a matter of law to

establish viable claims for breach of contract and battery. Accordingly, we reverse the

judgment with directions that the trial court enter a new order granting summary

1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2 adjudication as to those claims, and denying summary adjudication as to Keehn's

negligence claim.

FACTUAL AND PROCEDURAL BACKGROUND

We state the facts from the record before the trial court when it made its summary

judgment ruling, viewing the evidence and resolving all inferences and doubts from it in

Keehn's favor. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

In May 2011, Keehn underwent Intense Pulse Light (IPL) laser treatment at Clinic

on his neck and chest, performed by Mani, a registered nurse. Keehn returned to Clinic

on August 15, 2011, for further treatment for redness on his chest and neck. On both

occasions, Keehn signed consent forms.2 During Dr. McLeod's administration of the

laser on August 15, 2011, Keehn was in extreme pain and yelling, "ouch," "wait a

minute," and "stop," and he asked Dr. McLeod to stop several times. The doctor

hesitated momentarily but coaxed Keehn to continue; she assured him to "push through."

According to Keehn, Dr. McLeod told him they always were more aggressive on the

2 Defendants' consent form for the August 15, 2011 IPL treatment, on which Keehn handwrote and initialed after each paragraph, states in part (with Keehn's handwriting in italics): I Daniel Keehn, understand that I will undergo (IPL) Intense Pulse Light Laser/Yag Laser for the treatment and/or correction of: Redness. [¶] I understand that the Lumenis One IPL is intense pulse light. The treatment is intended for Photorejuvenation in addition to treatment of benign vascular and pigmented lesions and that clinical results may vary in different skin types. . . . [¶] . . . [¶] "The most likely complications/risks: I understand that most people may experience a temporary redness similar to sunburn. You may feel sunburn like [sic] sensation for several hours after the treatment. Some swelling of the skin may occur. I also understand that there is a possibility of rare side effects such as scarring and permanent discoloration as well as short-term effects such as reddening, mild burning, temporary bruising and temporary discoloration of the skin. These effects have all been full [sic] explained to me." 3 second treatment and it was necessary to go "extra deep" to get anything that was

precancerous. After the treatment, Keehn and his friend noticed large purple and brown

spots on Keehn's chest that looked like his skin was blistering and beginning to scab.

That night, Keehn's friend took several pictures of Keehn's skin.

Three days later, Dr. McLeod saw Keehn for the blisters that had formed after his

August 15, 2011 IPL treatment. She recommended he use topical burn creams. Keehn

returned to Clinic and saw Dr. McLeod again on August 19, 22 and 25, 2011, and on

September 2 and 16, 2011, continuing his topical treatments. On August 20, 2011,

Keehn saw a nurse at Clinic who told him not to wear clothing touching his chest and

neck due to his open wounds. Keehn returned to Clinic four additional times for different

(Fraxel) laser treatments in October and December 2011, and January and February 2012.

Dr. McLeod saw Keehn the last time on June 7, 2012, at which time she noted he had

areas of hypopigmentation on his neck and chest.

Keehn was not told at any of his follow-up visits and treatments at Clinic that

anyone had performed improperly, made a mistake or had done something wrong, or that

their treatment fell below the standard of care. After August 15, 2011, Keehn was

continually told that further treatments would improve his skin from its original

condition. He followed Dr. McLeod's and Mani's recommendations as he understood

they were trained professionals in the area of practice and thus continued his treatments

with Clinic. Keehn was not given Clinic's medical records for each of his visits, on

which Dr. McLeod had recorded the fact that the treatment had caused second degree

4 burns to his skin. Keehn saw those medical records for the first time through his attorney

in the present action.

On June 7, 2012, defendants told Keehn he could continue to improve from a new

type of machine—a V-Beam—that Clinic did not have at the time. Keehn followed up

with Clinic in August and October, but it still did not have the V-Beam.

Keehn saw his primary physician, Billy Green, M.D., on September 1, 2012. She

told him his condition was healing well but she was not a specialist in skin or

dermatology, and she did not tell him that his treatment at Clinic was malpractice or fell

below the standard of care. On September 12, 2012, another doctor, Carol Hollan, M.D.,

asked for a copy of Keehn's medical records from Clinic.

On October 3, 2012, Keehn went to see Dr. Richard Fitzpatrick for V-Beam

treatment. Dr. Fitzpatrick told him then for the first time that respondents' care and

treatment had fallen below the standard of care in the industry and that Keehn had

suffered second degree burns. Dr. Fitzpatrick's clinical progress note from that day as to

his impression reads: "(1) Hypopigmented scarring secondary to excessive energies used

with IPL [¶] (2) Persistent photo damage of upper chest and neck." Several days later,

Dr. Fitzpatrick's associate, Dr. Mitchel Goldman, requested copies of Keehn's medical

records from Clinic. On October 26, 2012, Dr. Fitzpatrick wrote an addendum

"Impression" note in Keehn's chart: "While it would be acceptable to have a random spot

of blistering, this degree of blistering and subsequent scarring would be considered below

the standard of care."

5 On August 13, 2013, Keehn filed suit against defendants, alleging a single cause

of action for professional medical negligence. Keehn eventually filed a first amended

complaint alleging causes of action for negligence, breach of contract, professional

negligence and "assault and battery." In support of his negligence cause of action, Keehn

alleged in part that on August 15, 2011, defendants administered laser treatments on his

neck, chest and shoulder region "at an energy setting . . . much too high and intense for

these areas and for [his] skin," and afterwards they were negligent because they "did not

appreciate the seriousness of [his] injuries, nor did not convey or properly disclose the

seriousness of his condition . . . , and did not provide care, treatment or appropriate

referrals to promptly address [his] worsening condition." In support of his professional

negligence cause of action, Keehn similarly alleged defendants' professional negligence

caused him serious injuries and "did not provide care, treatment or appropriate referrals

to promptly address [his] condition."

Mani and Clinic, and separately Dr. McLeod and Clinic, moved for summary

judgment or alternatively summary adjudication of issues. They argued Keehn had

admitted during discovery that he discovered his injury on or before August 19, 2011, the

date he sought remedial medical care from the defendants and also complained about his

condition, barring his professional negligence and breach of contract causes of action

under section 340.5's one-year statute of limitations. They argued that uncontradicted

expert testimony—via Dr. McLeod's declaration submitted in connection with the

motions—demonstrated that Keehn's treatment met the applicable standard of care and

neither Mani nor Dr. McLeod negligently caused his injuries. Defendants further argued

6 that Keehn could not create a triable issue of fact as to whether a breach of contract

occurred or medical battery was committed. They argued Keehn's contract claim was an

impermissible splitting of his medical negligence cause of action, Keehn could not

establish a contract existed, and there was no promise of a specific result or meeting of

the minds to establish such a claim. As for Keehn's battery claim, they argued it also

sounded in negligence and Keehn could not establish defendants committed battery in

part by intending to cause him harm, or that he did not give informed consent.

Keehn opposed the motions, objecting to defendants' evidence on several grounds.

He submitted his declaration recounting the fact that after his treatment on August 15,

2011, no one at Clinic told him he had suffered second degree burns, he did not see his

medical records documenting that information, and he returned to Clinic for repeated

follow-ups and received assurances from Dr. McLeod that his skin would heal well and

improve from his follow-up care and visits. Keehn also submitted the declaration of Dr.

Goldman, who averred that he had helped develop the IPL and specifically the Lumenis

One Laser, and that Dr. Fitzpatrick, his associate, was a medical professional expert in

the field of laser treatments who had been treating Keehn. Dr. Goldman stated that Dr.

Fitzpatrick had passed away in the last year. Referring to Dr. Fitzpatrick's October 2012

note, which Dr. Goldman stated was a business record kept at their facility, Dr. Goldman

reiterated that it was Dr. Fitzpatrick's opinion that defendants' care fell below the standard

of care in their professional industry, and that Keehn had suffered second degree burns at

their hands. Dr. Goldman also stated that after he had reviewed Keehn's medical files, he

concurred that defendants' medical care fell below the acceptable standard of care in their

7 medical professional community, and that second degree burns and the resultant IPL

treatment at Clinic was below the standard of acceptable medical care. According to Dr.

Goldman, Clinic's treatment caused Keehn to suffer the second degree burns and

appeared to make his skin condition considerably worse than when Keehn appeared at

Clinic in May 2011.

In reply, defendants objected to Dr. Goldman's declaration on grounds it lacked

foundation and was devoid of facts, misstated facts, was hearsay, called for speculation,

was beyond the scope of his expertise, and was not offered to a reasonable degree of

medical probability. In part, they challenged Dr. Goldman's declaration on grounds he

did not state he had provided IPL laser treatments on patients or was familiar with health

care providers' standard of care in such treatments. They argued his opinions concerning

the standard of care and causation were mere conclusions without supporting facts or

reasoned explanation.

Sustaining defendants' objections to Dr. Goldman's declaration, the trial court

granted the motion. It ruled Keehn's action was essentially for medical negligence and

was barred by the one-year statute of limitations. The court ruled additionally that on the

merits, Dr. Goldman's declaration was insufficient to create a triable issue of fact

regarding any violation of the standard of care. It overruled the remaining evidentiary

8 objections. The court finally ruled Keehn's remaining causes of action lacked support by

admissible evidence.3

Keehn appeals from the ensuing judgment in defendants' favor.

DISCUSSION

I. Standard of Review

" 'A trial court properly grants a motion for summary judgment where "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." ' " (Hampton v. County of San

Diego, supra, 62 Cal.4th at p. 347.) The moving parties, here defendants, bear an initial

burden to show the cause of action has no merit, that is, to show " ' " 'the plaintiff "has

not established, and cannot reasonably expect to establish," ' the elements of his or her

cause of action." ' " (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705; Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may also move for summary

adjudication of an affirmative defense, which is properly granted when there is no triable

issue of material fact as to the defense, and the motion completely disposes of that

3 The court's ruling states: "Though phrased in numerous and creative ways, the present action is essentially a medical negligence case and the one year statute of limitations applies. There is no admissible evidence to support an independent claim for battery (and [Keehn's] attempt to create such a claim actually strengthened the defense statute of limitations argument). There is no admissible evidence to support an independent claim for breach of contract. Were the Court to follow [Keehn's] logic, all medical malpractice cases which included forms for billing or informed consent would also create a companion breach of contract case. Finally, though the Court finds the action is barred by the statute of limitations, the motion is granted on the merits as Dr. Goldman's declaration, after objection, is insufficient to create a question of material fact regarding violation of the standard of care." 9 defense. (§ 437c, subd. (f)(1); North Coast Women's Care Medical Group, Inc. v.

Superior Court (2008) 44 Cal.4th 1145, 1160.) Once the moving defendant makes such a

showing, the plaintiff is then subjected to a burden of production of his own to make a

prima facie showing of the existence of a triable issue of material fact as to that cause of

action or defense. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154; Aguilar, at

p. 850.)

" ' " ' "We review the trial court's decision de novo, considering all the evidence set

forth in the moving and opposing papers except that to which objections were made and

sustained." ' [Citation.] We liberally construe the evidence in support of the party

opposing summary judgment and resolve doubts concerning the evidence in favor of that

party." ' " (Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347; Pipitone v.

Williams (2016) 244 Cal.App.4th 1437, 1452 [it is more accurate to say that on summary

judgment, the court considers all evidence in papers except that to which objections have

been made and properly sustained].) However, "when a defendant can establish his

defense with the plaintiff's admission sufficient to pass the strict construction test

imposed on the moving party, the credibility of the admissions are valued so highly

that the contradicting affidavits may be disregarded as irrelevant, inadmissible or

evasive . . . ." (Gray v. Reeves (1977) 76 Cal.App.3d 567, 573-574.) This is because

" 'admissions against interest have a very high credibility value. This is especially true

when . . . the admission is obtained not in the normal course of human activities and

affairs but in the context of an established pretrial procedure whose purpose is to elicit

facts.' " (Ibid., quoting D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)

10

II. Bar of the Statute of Limitations

A. The Discovery Rule

Section 340.5 sets forth the applicable statute of limitations for an action against a

health care provider based upon such person's alleged professional negligence. Such an

action must be brought within "three years after the date of injury or one year after the

plaintiff discovers, or through the use of reasonable diligence should have discovered, the

injury, whichever occurs first." (§ 340.5.)4 The one-year period may be extended by the

required 90-day notice of intent to sue a health care provider. (§ 364, subd. (a).) If the

notice of intent is served within 90 days of the expiration of the statute of limitations, the

time for commencement of the action is extended by 90 days from the date of service.

(§ 364, subd. (d).)

Section 340.5's discovery rule postpones accrual of a cause of action, and thus

commencement of the statute of limitations, until the plaintiff discovers or has reason to

discover the injury. (Norgart v. Upjohn Company (1999) 21 Cal.4th 383, 397; Pooshs v.

Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797; Gutierrez v. Mofid, supra, 39 Cal.3d

4 Section 340.5 further provides: "In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person." These tolling provisions apply only to the outside three-year statute of limitations. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96, 100-101 (Sanchez) [addressing former section 340.5 but noting that the later amended statute makes this proposition clear].) "The 'one-year period is not similarly extended.' " (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1201, quoting Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896; Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1685 ["[t]here is no tolling provision in the one-year limitation, not even for fraud or concealment, much less for the pursuit of evidence of negligence"].) 11 at p. 896.) "[T]he term 'injury,' as used in section 340.5, means both 'a person's physical

condition and its "negligent cause." ' " (Gutierrez, at p. 896, quoting Sanchez, supra, 18

Cal.3d at p. 99; see Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931

[discovery rule delays accrual until the plaintiff is " 'aware of her injury and its negligent

cause' "]; Brown v. Bleiberg (1982) 32 Cal.3d 426, 433-435; Gray v. Reeves, supra, 76

Cal.App.3d at p. 575.) Accordingly, the statute of limitations does not commence merely

because a patient is aware of the physical manifestation of injury. However, the patient is

"charged with 'presumptive' knowledge of his negligent injury, and the statute

commences to run, once he has ' "notice or information of circumstances to put a

reasonable person on inquiry, or has the opportunity to obtain knowledge from sources

open to his investigation . . . ." ' [Citation.] Thus, when the patient's 'reasonably founded

suspicions [have been aroused],' and she has actually 'become alerted to the necessity for

investigation and pursuit of her remedies,' the one-year period for suit begins."

(Gutierrez, at pp. 896-897; see also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th

797, 807-808.)

Application of the statute of limitations, including the question of belated

discovery, is usually a factual issue to be decided by a trier of fact. (Fox v. Ethicon

Endo-Surgery, Inc., supra, 35 Cal.4th at p. 810; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d

1103, 1112.) But "where the uncontradicted facts established through discovery are

susceptible of only one legitimate inference, summary judgment is proper." (Jolly, at

p. 1112; see Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-1055;

Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.)

12 B. Contentions

Keehn contends the court erred by ruling the statute of limitations barred his

negligence cause of action. He maintains the evidence shows he did not know he was

permanently injured but was led to believe his condition was part of the process for

getting the ultimate results of his IPL procedure, and thus he sought follow-up care with

defendants. He argues that even if he discovered that he had suffered permanent injuries,

because he continued his treatment and defendants did not disclose the severity of his

burns but rather allayed his concerns, any diligence in learning the negligent cause is

diminished, and any suspicion of wrongdoing on his part was vitiated by defendants'

actions. He points out the evidence shows he sought out another professional, Dr.

Fitzpatrick, only because he had a particular machine that would accomplish his ultimate

result. Keehn maintains defendants' intentional concealment of the second degree nature

of his burns tolled the limitations period under section 340.5, subdivision (2). Finally,

Keehn argues defendants should be equitably estopped from asserting the statute of

limitations, or the limitations period should be equitably tolled, based on his good faith

pursuit of a legal remedy.

Defendants respond by asserting that the evidence shows Keehn "knew

immediately after the August 15, 2011 IPL procedure he developed blisters and he

suspected negligence on the part of Defendants," which commenced the one-year statute

of limitations. Specifically, they point to Keehn's response to special interrogatory No. 5,

which asked him to "[s]tate the date you or anyone on your behalf became aware of the

facts that the care provided by the defendant was negligent." (Some capitalization

13 omitted.) Keehn objected that it called for speculation as to other people's knowledge,

but responded: "[A]s to this answering Plaintiff, August 15, 2011, was when it was first

discovered by Plaintiff, John Theriault, and Kitty Keehn, and its discovery is continuing

to date. Dr. Fitzpatrick and staff on October 3, 2012[,] and Dr. Cohen and staff on April

3, 2013[.] Dr. Green was seen the day or so after the injury was incurred." Defendants

also point to the fact Keehn sought copies of his medical records from Clinic in

September and October 2012.5 Defendants maintain this evidence shows Keehn "clearly

admit[ted] . . . he suspected negligence on the part of Defendants on 'August 15, 2011.' "

C. Defendants' Evidence Does Not Establish Keehn Unequivocally Admitted to

Knowledge or Suspicion of Defendants' Negligence in August 2011 and Keehn's Evidence

Presents Triable Issues of Fact of His Knowledge or Suspicion

Normally, we would first address whether, with the foregoing evidence of Keehn's

discovery admissions, defendants met their initial summary judgment "burden of

5 Defendants additionally point to Keehn's assertion in his opposing summary judgment points and authorities that he "demanded" further care for his pain and damaged condition on August 19, 2011. But statements in points and authorities are not admissible evidence. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 767, fn. 8; Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735.) In their summary judgment motions below, defendants referred to the following portion of Keehn's deposition testimony: "[Defense counsel:] You're telling me about your neck and chest several days after the treatment. Do you recall what your neck and chest looked like on the 16th, the day after the treatment? [¶] [Keehn:] Yes. [¶] [Defense counsel:] What did it look like then? [¶] [Keehn:] Where it had bruised, the skin had started turning black and was starting to peel back." This testimony demonstrates that Keehn may have been aware of his injury, but not that it was caused by any wrongdoing. 14 production to make a prima facie showing of the nonexistence of any triable issue of

material fact" as to commencement of the one-year limitations period. (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851; Guz v. Bechtel Nat. Inc. (2000)

24 Cal.4th 317, 334; Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1443

[" ' "Despite the shifting burdens of production, the defendant, as the moving party,

always bears the ultimate burden of persuasion as to whether summary judgment is

warranted" ' "].) But Keehn has forfeited any argument that defendants did not meet their

summary judgment burden because he does not advance such an argument here (nor did

he below). (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1984-1085.)

Keehn instead contends his evidence raised triable issues of material fact

precluding summary judgment on grounds of the statute of limitations. As we explain,

we agree. We have summarized above that "it is not enough to commence the running of

the limitations period when the plaintiff knows of her injury and its factual cause (or

physical cause). Rather, the plaintiff must be aware of her injury, its factual cause, and

sufficient facts to put her on inquiry notice of a negligent cause." (Clark v. Baxter

Healthcare Corp., supra, 83 Cal.App.4th at p. 1057, italics added.) While the discovery

rule requires a suspicion " 'that someone has done something wrong' to him" (Norgart v.

Upjohn Co., supra, 21 Cal.4th at p. 397), a patient "is fully entitled to rely upon the

physician's professional skill and judgment while under his care, and has little choice but

to do so." (Sanchez, supra, 18 Cal.3d at p. 102; see also Brown v. Bleiberg, supra, 32

Cal.3d at p. 438, fn. 9; Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1393; Unjian v.

Berman (1989) 208 Cal.App.3d 881, 886.) "Where . . . the injury is obvious but there is

15 nothing to connect that injury to defendant's negligence it cannot be said as a matter of

law the plaintiff's failure to make an earlier discovery of fault was unreasonable.

[Citation.] This is especially true in cases . . . where the plaintiff continues under the

doctor's care, doesn't inquire about the cause of his apparent injury and is given an

explanation calculated to allay any suspicion of negligence on the doctor's part." (Unjian,

at p. 885; see also Brown v. Bleiberg, at p. 434 [reversing summary judgment because

"reasonable minds could differ" about the sufficiency of the plaintiff's explanation that

she was prevented from suspecting negligence by her doctor's misrepresentations about

the nature of the surgery he performed and why he performed it].)

Here, Keehn's summary judgment declaration demonstrates that after his August

15, 2011 treatment, though he observed his skin was blistering, he did not seek out a

second opinion right away but remained under Dr. McLeod's care, seeing her consistently

until June 7, 2012. According to Keehn, during this time, defendants never suggested

anything was wrong and they encouraged him to continue treatment with them; that his

"condition would heal well and improve with the follow-up care and visits." Even after

his last treatment with Dr. McLeod, Keehn followed up with Clinic in August and

October to check if Clinic had obtained the V-Beam that defendants had recommended

would help Keehn "improve." Keehn was never advised he had suffered second degree

burns or that his symptoms were caused by negligence until Keehn saw Dr. Fitzpatrick in

October 2012. Keehn only went to Dr. Fitzpatrick because Clinic had not yet obtained

the machine recommended by defendants, and it was at that time, within one year from

Keehn's August 2013 filing of his initial complaint (and well within three years from the

16 date of the negligent treatment), that Dr. Fitzpatrick told Keehn that Clinic's treatment

had caused him second degree burns and fell below the industry standard of care.

Keehn's awareness on August 15 2011, and afterwards that he developed blisters

or that his treatment hurt more than expected is insufficient by itself to trigger the statute

of limitations: "The fact an operation did not produce the expected result would not

necessarily suggest to the ordinary person the operation had been performed negligently."

(Unjian v. Berman, supra, 208 Cal.App.3d at p. 885.) Our Supreme Court has explained

that "[t]he best medical treatment sometimes fails, or requires long and difficult

recuperation, or produces bad side effects. Thus, even if a patient is unhappy with his

condition, he may not suspect he has been wronged. Lacking medical knowledge, he

may reasonably rely upon his negligent physician's soothing disclaimers." (Gutierrez v.

Mofid, supra, 39 Cal.3d at p. 899.) Additionally, contrary to defendants' argument,

evidence that Keehn had his last treatment at Clinic in June 2011 does not also establish

or even suggest that he had discovered defendants' negligence by that time, particularly

where the evidence shows his willingness to return to Clinic; checking back with it in

August and October for the machine Dr. McLeod had recommended for him. Likewise,

Keehn's claim is not defeated by evidence that he saw his primary care physician Dr.

Green (who told him he was "healing well" in any event) and that other physicians sought

copies of Keehn's medical records from Clinic. His visit and these requests occurred in

September and October 2012 within one year from the August 2013 filing of his lawsuit,

and thus even assuming they constitute proof that Keehn suspected negligence on

17 defendants' part (an inference favoring defendants that we cannot draw in a summary

judgment analysis), they do not render his complaint untimely.

Keehn's interrogatory response does not compel a different result. It is true that in

the summary judgment context, admissions or concessions made during the course of

discovery govern and control over contrary and self-serving declarations by a party

submitted on a motion for summary judgment. (See Shin v. Ahn (2007) 42 Cal.4th 482,

400, fn. 12; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861;

D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 21-22; Visueta v.

General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613; Gray v. Reeves, supra, 76

Cal.App.3d at pp. 573-574.) But " 'summary judgment should not be based on tacit

admissions or fragmentary and equivocal concessions, which are contradicted by other

credible evidence.' " (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 460,

quoting Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, overruled on other

grounds by Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn.

(2013) 55 Cal.4th 1169, 1182; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th

1510, 1523 [citing cases].) Properly applied, the rule stated in D'Amico and these cases

permits a court to disregard a party's declaration testimony only where the declaration

and the discovery responses are "contradictory and mutually exclusive" (Benavidez, at

pp. 862-863) or "diametrically opposed" (Gray v. Reeves, at p. 574), or where the

declaration contradicts "unequivocal admissions" in discovery. (Mikialian v. City of Los

Angeles (1978) 79 Cal.App.3d 150, 162.)

18 Contrary to defendants' assertion, Keehn did not straightforwardly admit in

discovery that he suspected negligence or wrongdoing by defendants on August 15, 2011.

Defendants' special interrogatory—asking Keehn for the date he became aware of "facts

that the care provided by . . . defendant[s] was negligent" (some capitalization omitted)—

is not such an unambiguous or unequivocal question. Strictly construing it as we must,

we read the inartful question as calling for the date that Keehn obtained knowledge of

facts supporting or underlying his claim of negligence, not when he in fact discovered or

suspected defendants were negligent in their care and treatment. At best, Keehn's

response—that he discovered "it" on August 15, 2011—is a tacit or equivocal admission

that will not permit application of the D'Amico rule where there is credible contradictory

evidence. (Minish v. Hanuman Fellowship, supra, 214 Cal.App.4th at p. 460.) Keehn's

summary judgment declaration recounts his continued visits and defendants' reassurances

that his continued treatment with them would improve his condition. There is nothing

implausible about his explanation. Particularly where he had been previously informed

in writing that the IPL treatment could result in temporary burning, bruising, and

discoloration, there is no indication Keehn knew or should have known on August 15,

2011, that anything incorrect had been done, or that he had been harmed through

professional negligence from his IPL treatment at Clinic. On a summary judgment, this

is a case where "reasonable minds could differ" (Brown v. Bleiberg, supra, 32 Cal.3d at

p. 434) as to the sufficiency of Keehn's explanation that he was prevented from

suspecting defendants' negligence.

19 In sum, accepting Keehn's declaration and on the record as a whole, the evidence

presents a triable issue of fact as to whether Keehn discovered, or reasonably should have

discovered, that defendants' negligence caused his injury for purposes of triggering the

one-year statute of limitations on August 15, 2011. Our conclusion renders it

unnecessary to address Keehn's theories as to intentional concealment, equitable tolling

and estoppel.

III. Professional Negligence Causes of Action

We further hold that the evidence raises fact issues for a jury as to whether

defendants' care and treatment fell below the standard of care.6 Keehn sought to meet his

opposing summary judgment burden by proffering Dr. Goldman's opinion, but the trial

court excluded his declaration in its entirety as "insufficient to create a question of

material fact regarding violation of the standard of care." In reviewing the propriety of

summary judgment, we consider "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." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th

465, 476.) We review for abuse of discretion the trial court's decision to exclude Dr.

Goldman's testimony. (Shugart v. Regents of University of California (2011) 199

Cal.App.4th 499, 505; Avivi v. Centro Medico Urgente Medical Center (2008) 159

Cal.App.4th 463, 467; DiCola v. White Brothers Performance Products, Inc. (2008) 158

Cal.App.4th 666, 679.)

6 Our conclusions apply to both Keehn's negligence and professional negligence causes of action, the underlying allegations of which appear to be indistinguishable. 20 A. The Court Erred by Excluding Dr. Goldman's Declaration

Principles relating to the admissibility and foundation of expert testimony are well

established: "[S]ection 720 provides that a person may testify as an expert 'if he has

special knowledge, skill, experience, training, or education sufficient to qualify him as an

expert on the subject to which his testimony relates,' and that '[a] witness'[s] special

knowledge, skill, experience, training, or education may be shown by any otherwise

admissible evidence, including his own testimony.' " (People v. Jones (2012) 54 Cal.4th

1, 57.)

"[T]he lack of foundation of an expert's testimony can be as to the expert being

qualified, the validity of the principles or techniques upon which the expert relied, or as

to the reliability and relevance of the facts upon which the expert relied." (Howard

Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114.) Against a party's

objections, special knowledge, experience, training or education must be shown before

the witness may provide expert testimony, and his qualifications must be related to the

particular subject upon which he is giving testimony. (Id. at p. 1115.) "However, 'work

in a particular field is not an absolute prerequisite to qualification as an expert in that

field.' [Citation.] For example, '[q]ualifications other than a license to practice medicine

may serve to qualify a witness to give a medical opinion.' " (Chavez v. Glock, Inc. (2012)

207 Cal.App.4th 1283, 1319; see Brown v. Colm (1974) 11 Cal.3d 639, 645 ["The

unmistakable general trend in recent years has been toward liberalizing the rules relating

to the testimonial qualifications of medical experts"]; Mann v. Cracchiolo (1985) 38

Cal.3d 18, 37 [same].) "The determinative factor is whether the expert 'has sufficient

21 skill or experience in the field so that his [or her] testimony would be likely to assist the

jury in the search for the truth.' " (Chavez, at p. 1319, quoting Mann, at p. 38.) Once an

expert establishes knowledge sufficient to permit his or her opinion to be considered by a

jury, concerns about the extent of an expert's expertise or the matter used to formulate his

opinion go to the weight of his testimony, not its admissibility. (See People v. Jones,

supra, 54 Cal.4th at p. 59; People v. Bolin (1998) 18 Cal.4th 297, 322; Chavez, at p. 1319

["degree of expertise goes to the weight of the expert's testimony, not its admissibility"];

Howard Entertainment, at p. 1121 ["So long as foundational reliability is met, the

strength of an expert's assumptions affects the weight rather than the admissibility of the

opinion"].)

Because the trial court did not state its specific reasons for excluding Dr.

Goldman's opinion, we address each of defendants' objections to determine whether any

of them warranted exclusion.

1. Qualifications/Foundation

Defendants objected to Dr. Goldman's declaration on grounds it lacked foundation,

"he show[ed] no evidence of being qualified to offer an expert opinion in the matter," and

his opinions were "beyond the scope of [his] expertise." On appeal, defendants argue Dr.

Goldman "failed to state he performed IPL procedures or he was familiar with the

standard of care regarding IPL treatment of patients with rosacea; . . . he did not cite what

specific medical records he reviewed and failed to provide any medical records to the

court . . . ."

22 The court abused its discretion to the extent it determined Dr. Goldman lacked

foundation, qualifications, or expertise for his opinions. Dr. Goldman stated he is a

medical doctor and owner of Goldman Butterwick Groff & Fabi, a Cosmetic Laser

Dermatology center, which provides laser cosmetic services to patients. Dr. Goldman

averred that he helped develop the IPL laser and particularly the Lumenis One Laser., the

very same laser used in Keehn's treatment. His lengthy curriculum vitae (CV), which he

referred to as an exhibit and is in the record, reflects that he went to Stanford Medical

School, was a dermatology resident at UCLA, and is board certified in dermatology and

cosmetic surgery. He has served on numerous advisory boards and is a medical

consultant for several companies. The CV reflects that from the mid-1990's to the

present time, Dr. Goldman has served as a manuscript reviewer for journals including the

Journal of the American Academy of Dermatology, Lasers in Surgery and Medicine, and

the International Journal of Cosmetic Surgery, among many others. He has been the

principal investigator for numerous clinical studies, several relating to the efficacy of the

Lumenis One IPL and other IPL usages, including for subjects with moderate to severe

facial hyperpigmentation. The portion of Dr. Goldman's CV listing his medical

textbooks, book chapters and other publications spans approximately 40 pages. Our

review reveals that many of his writings involve varying usages of IPL and other lasers.7

7 For example, Dr. Goldman is an author on publications entitled: "On the Horizon: Cosmetic Treatments with Lasers and Intense Pulsed Light"; "Treatment of Melasma and the Use of Intense Pulsed Light: A Review"; "The application of intense pulsed light in the treatment of dermatologic disease: a systemic review" and "Comparison of Intense Pulsed Light with 1,927-nm Fractionated Thulium Fiber Laser for the rejuvenation of the 23 Our assessment of the adequacy of Keehn's opposing summary judgment evidence

requires us to liberally construe Dr. Goldman's declaration. (Aguilar, supra, 25 Cal.4th at

pp. 844-845.) An opposing party's declaration does not need to be detailed, and it is

entitled to all favorable inferences. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607;

Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332;

Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125.) Giving Dr. Goldman's

declaration such liberal construction as we must, we are left with little doubt that Dr.

Goldman has sufficient skill and experience in the cosmetic and other use of IPL laser

treatment on patients so that his testimony would be likely to assist the jury in the search

for truth. (Howard Entertainment, Inc. v. Kudrow, supra, 208 Cal.App.4th at pp. 1114-

1115.) "The test for determining familiarity with the standard of care is knowledge of

similar conditions." (Avivi v. Centro Medico Urgente Medical Center, supra, 159

Cal.App.4th at p. 470.) Defendants' attack on Dr. Goldman's declaration for not

specifically stating he was familiar with the standard of care regarding IPL treatment for

rosacea, when the record reflects his expertise in a variety of laser and IPL usages for

subjects with skin pigmentation issues, is unavailing and would require us to improperly

strictly construe this evidence. Likewise unavailing is defendants' challenge to

admissibility of Dr. Goldman's CV because Dr. Goldman did not state it is accurate, and

it is not "signed under penalty of perjury." Defendants provide no authority for this

chest." Melasma is a "patchy pigmentation of sun-exposed skin . . . ." (Stedman's Medical Dictionary (28th ed. 2006) p. 1176, col. 1.) 24 proposition, and it is meritless, as Dr. Goldman signed his declaration, which refers to his

CV as an attached exhibit, under penalty of perjury.

Citing Garibay v. Hemmat (2008) 161 Cal.App.4th 735, defendants assert that a

medical expert relying on medical records must put those records before the court or it

will be deemed without evidentiary foundation. However, Dr. Goldman explained his

opinion by referencing Keehn's medical records from Clinic, which were already

authenticated and placed before the court by defendants—who had the initial burden of

production on summary judgment (§ 437c, subd. (p)(2); accord, Shugart v. Regents of

University of California, supra, 199 Cal.App.4th at p. 506), and those records, as well as

Dr. Fitzpatrick's October 2012 records, were also attached to Keehn's opposing notice of

lodgment. The circumstances are entirely unlike Garibay, in which the appellate court

found the moving summary judgment defendant's medical expert had not demonstrated

personal knowledge of the underlying facts on which he based his opinion because his

declaration "attempted to testify to facts derived from medical and hospital records which

were not properly before the court." (Garibay, 161 Cal.App.4th at p. 743.) Garibay does

not require a party opposing summary judgment to file duplicate copies of the medical

records on which the opposing expert relied in forming a disputed expert opinion if they

are already before the court in support of the motion. (Shugart, at p. 506.)

The record permits an inference of the requisite knowledge to establish Dr.

Goldman's qualifications, foundation and expertise to testify as an expert, and

consequently the trial court abused its discretion in sustaining defendants' objections on

these grounds.

25 2. Specificity of and Support for Standard of Care and Causation Opinions

Defendants further objected to Dr. Goldman's declaration on grounds it had "no

evidence to substantiate" his conclusions, was "conclusory," called for speculation, and

either misstated or was "devoid" of facts. On appeal, defendants further assert, citing

Powell v. Kleinman, supra, 151 Cal.App.4th 112 and Jennings v. Palomar Pomerado

Health Systems, Inc. (2003) 114 Cal.App.4th 1108, that an expert's opinion given without

a reasoned explanation has no evidentiary value, and that a medical expert's opinion must

be stated to a degree of medical probability, none of which occurred here. The latter rule,

that an opinion must be stated to a degree of medical probability, pertains only to

causation. (Jennings, at p. 1118 [in a personal injury action causation must be proven

within a reasonable medical probability based on competent expert testimony]; see also

Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1572; Bushling v.

Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

Defendants' challenges on these grounds are unavailing. In his declaration, Dr.

Goldman stated he had reviewed Keehn's medical records, and, referring to Dr.

Fitzpatrick's October 2012 note that Keehn had suffered second degree burns at the hands

of defendants, he averred that after his independent review of the records, he agreed that

defendants' "medical care fell below the acceptable standard of care in our medical

professional community and that second degree burns from the treatment Daniel Keehn

had on August 15, 2011, and the resultant IPL treatment at [Clinic] is below the standard

of acceptable medical care." Importantly, the court in Powell distinguished between

medical expert declarations submitted in support of and in opposition to the motion,

26 clarifying that an opposing declaration, such as Dr. Goldman's, "did not have to be

detailed" and "must be liberally construed." (Powell v. Kleinman, supra, 151

Cal.App.4th at pp. 125, 128; see also Jennifer C. v. Los Angeles Unified School Dist.,

supra, 168 Cal.App.4th at p. 1332 ["The requisite of a detailed, reasoned explanation for

expert opinions applies to 'expert declarations in support of summary judgment,' not to

expert declarations in opposition to summary judgment"].) Thus, the Powell court

pointed out that a plaintiff's medical expert's declaration as to causation was sufficient

where it stated the plaintiff " 'suffered nerve damage during the surgery and that the care

defendants provided was a cause of his injuries.' " (Powell, at p. 125.) The reasonable

inferences from that declaration " 'include a reading of the declaration to state that the

nerve damage [the plaintiff] suffered during surgery was caused by the conduct of [the]

defendants, which conduct fell below the applicable standard of care. Nothing more was

needed.' " (Ibid., quoting Hanson v. Grode, supra, 76 Cal.App.4th at pp. 607-608.) We

infer Dr. Goldman's opinion is based in part on records showing that Clinic's treatment

resulted in second degree burns and scarring "secondary to excessive energies used with

IPL," which informed his conclusion that the treatment fell below the requisite standard

of care. His statements as to duty, while not a model of specificity, are sufficiently

detailed to permit their admission. Likewise, Dr. Goldman's statement as to causation—

that "[t]he treatment by [Clinic] caused Daniel Keehn to suffer second-degree burns and

appeared to make [his] skin condition considerably worse than that which he had prior to

presenting at [Clinic] in May 2011"—is sufficient. It does not just posit a " ' "mere

possibility" ' " (Jennings v. Palomar Pomerado Health Systems, Inc., supra, 114

27 Cal.App.4th at p. 1118) that defendants' treatments caused Keehn to suffer second degree

burns and an adverse appearance.

Defendants challenge Dr. Goldman's reliance on the "partial unsigned addendum

medical notation attributed to Dr. Fitzpatrick" on grounds the notation does not say that

Dr. Fitzpatrick was familiar with the standard of care in the industry, it was dated 23 days

after Dr. Fitzpatrick saw Keehn, it was not sworn under oath, and it is inadmissible

hearsay. They point out Keehn did not designate Dr. Fitzpatrick as an expert. They

argue the note cannot be used as expert opinion evidence. Defendants do not cite to any

case authority in support of these specific assertions (as opposed to general principles) or

accompany any of them with any meaningful legal argument, which entitles us to

disregard them. (Sims v. Department of Corrections & Rehabilitation (2013) 216

Cal.App.4th 1059, 1081; Associated Builders & Contractors, Inc. v. San Francisco

Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) We are unpersuaded in any event, as

Dr. Goldman averred that he independently reviewed Keehn's medical records and

reached his own opinion in the matter. It is settled that an expert may rely upon reliable

hearsay and other inadmissible matter, including medical and hospital records, in forming

an opinion as long as the matter relied upon provides a reasonable basis for the opinion

and the expert does not place opinions of nontestifying, out-of-court doctors before the

jury. (Howard Entertainment, Inc. v. Kudrow, supra, 208 Cal.App.4th at p. 1115; see

Evid. Code, § 801, subd. (b) [an expert's opinion may be based on matters known to the

28 expert "whether or not admissible"]; Whitfield v. Roth (1974) 10 Cal.3d 874, 895; People

v. Campos (1995) 32 Cal.App.4th 304, 307-308.)8

B. Dr. Goldman's Declaration Raises a Triable Issue of Material Fact as to Whether

Defendants' Treatment Fell Below the Standard of Care

Keehn, in opposing defendants' motion for summary judgment, need only make a

prima facie showing of the existence of a triable issue of material fact. (Jennifer C. v.

Los Angeles Unified School Dist., supra, 168 Cal.App.4th at p. 1334.) " 'Counter-

affidavits and declarations need not prove the opposition's case; they suffice if they

disclose the existence of a triable issue.' " (Id. at p. 1333, citing AARTS Productions, Inc.

v. Crocker National Bank (1992) 179 Cal.App.3d 1061, 1065.)

Here, Dr. Goldman's declaration, which contradicted the opinions of Dr. McLeod

in her summary judgment declaration, suffices to meet Keehn's opposing summary

8 We reject any suggestion that Dr. Goldman's declaration suffers from the same failings as the expert trial testimony in Whitfield v. Roth, supra, 10 Cal.3d 874, involving a plaintiff's lawsuit against radiologists for negligently failing to detect a brain tumor when they examined her X-rays. The defendants presented at trial one expert who testified over objection that he showed the X-rays to four neurological and radiological experts, and none of them detected any abnormality. (Id. at pp. 893-894.) Another defense expert testified he presented the plaintiff's X-rays to about 50 medical students, resident staff, and faculty doctors, and no one felt the X-ray demonstrated any significant pathology. (Id. at p. 894.) Admission of this testimony was held to be error because the out-of-court opinions were offered "solely for the improper hearsay purpose, namely as 'independent proof of the facts.' " (Id. at pp. 895-896.) Further, Whitfield (as well as People v. Campos, supra, 32 Cal.App.4th 304) is concerned with preventing the introduction of multiple opinions insulated from cross-examination into evidence, and the reasoning is confined to that situation. (People v. Miller (2014) 231 Cal.App.4th 1301, 1313, fn. 8.) Even if Dr. Goldman violated this principle by revealing the content of Dr. Fitzpatrick's opinion, his declaration makes clear he undertook his own evaluation of Keehn's medical records and reached his own opinion on the matter using Dr. Fitzpatrick's report if anything for corroboration, taking it outside the Whitfield context. 29 judgment burden. Indulging all reasonable inferences in support of his statements, it

raises a triable issue as to whether defendants' IPL treatment of Keehn, which caused him

second degree burns and a worse appearance to his skin than before he saw them,

breached the standard of care in the industry. That was enough to defeat summary

judgment. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856 ["if the

court concludes that the plaintiff's evidence or inferences raise a triable issue of material

fact, it must conclude its consideration and deny the defendants' motion"].)

IV. Breach of Contract Cause of Action

Keehn's breach of contract cause of action is based on his allegations that

defendants entered into an oral and written contract with him, by which they "agreed to

provide designated laser services for a fee" and "promis[ed] such services would reduce,

improve, and minimize his skin conditions and treat pre-cancerous conditions . . . ." He

alleges the agreement "promised services that would not cause second degree burns or

scarring to the nature that [he] suffered." Keehn alleges defendants breached the contract

by failing to treat his skin condition and worsening the conditions to be addressed,

including by magnifying the discoloration of his rosacea. On appeal, Keehn characterizes

defendants' conduct as making "specific promises . . . in approving the recommendations

for his care on May 5, 2011" including promises that "the treatment he would receive

would be for his particular skin type and condition, and that it would specifically treat his

30 redness, even-out his skin tone, and treat his wrinkles, pre-cancerous condition, and

rosacea."9

It has been held that in medical malpractice cases, "a doctor may be held liable on

a theory of breach of contract where he has clearly and unequivocally warranted that a

course of treatment recommended by him will, inevitably, produce a certain result."

(Pulvers v. Kaiser Foundation Health Plan, Inc. (1979) 99 Cal.App.3d 560, 564-565;

accord, McKinney v. Nash (1981) 120 Cal.App.3d 428, 442 ["To recover for breach of

warranty or contract in a medical malpractice case, there must be proof of an express

contract by which the physician clearly promises a particular result and the patient

consents to treatment in reliance on that promise"]; Depenbrok v. Kaiser Foundation

Health Plan, Inc. (1978) 79 Cal.App.3d 167, 171 [where "a surgeon has clearly promised

9 The consultation form that Keehn references does not include such representations. Under "Recommendations," it merely contains handwritten notations for "IPL neck," "IPL chest" and "Fraxel face + eyes," indicating the costs. Mani checked a box on the form indicating she explained the "Risks/Benefits of Medications/Procedure/With verbal consent." At her deposition, Mani testified she "talked to [Keehn] about IPL. IPL is good for Rosacea and also it's good for brown spot [sic]. And Fraxel is a very good treatment for wrinkles and brown spot [sic]." She testified she talked to him "about IPL for the neck and chest." When Mani was asked, "What was the IPL supposed to treat for the neck and chest?" she responded, "It get rid of the redness and also it can get rid of the brown spot [sic]." When Mani was asked what her recommendation concerning Fraxel meant, she answered, "It makes the skin tighter and it gets rid of the hyperpigmentation," and "makes your pores smaller." She agreed it was her standard procedure to explain that Fraxel "could also assist in removing the precancerous condition that someone might have." Mani admitted that she circled the wrong number for Keehn's skin type; that he was a skin type III, but she circled type V, indicating dark skin. None of this testimony, even liberally construed, demonstrates that Mani clearly or unequivocally promised Keehn a specific outcome or result from the IPL treatments, and Keehn does not allege that the Fraxel treatments caused his injuries. Summary judgment cannot be denied on grounds not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) 31 a particular result (as distinguished from a mere generalized statement that the result will

be good), and . . . the patient consented to an operation or other procedure in reliance on

that promise, there can be recovery on the theory of . . . breach of contract," fn. omitted];

Crawford v. Duncan (1923) 61 Cal.App. 647; see also Brown v. Bleiberg, supra, 32

Cal.3d at p. 431, fn. 1 [generally acknowledging cause of action, and observing it would

be governed by limitations period for personal injuries].)

Here, defendants presented evidence via Keehn's deposition that on August 15,

2011, Dr. McLeod only told him she would be performing the laser treatments on him

that day. Dr. McLeod's supporting summary judgment declaration states: "I never

promised Mr. Keehn a specific result from the IPL laser treatment of August 15, 2011

and I did not guarantee him that he would not develop blisters from the treatment." She

averred that she "never promised how much discomfort [he] would have during the

procedure" and "never intended to enter into an oral or written contract with Mr. Keehn

regarding how the IPL laser treatment would be provided or what specific results could

be expected."

Keehn's opposing summary judgment declaration does not contradict this

evidence. He states that he first consulted with Clinic on May 5, 2011, and he and his

mother met with Mani, who presented as a doctor, diagnosed his skin condition, and gave

him a written treatment plan. Keehn averred that Mani "orally promised that [Clinic's]

services would improve [his] skin condition with such recommended services" and "this

was the proper treatment recommendation for [his] skin type and conditions, specifically

to treat my redness, even-out my skin tone, wrinkles, and rosacea." She also told him

32 that with the recommended IPL services, "[he] would feel slight pulses, slight redness

like a light sunburn, and possible discomfort for which the medication would address."

On appeal, Keehn points to Mani's treatment recommendations as well as Dr. McLeod's

deposition in which she testified she agreed with Mani's May 5, 2011 recommendation to

treat Keehn's skin condition with Fraxel and IPL treatments. He also points to Mani's

deposition testimony that she determined her recommendation "would be the best to treat

his condition at that time . . . ." Keehn claims that Mani's deposition admission that she

mistakenly wrote down Keehn's skin type itself constitutes a breach of a contract that

Clinic would provide the "best services."

Accepting the truth of Keehn's evidence on this point, and further assuming the

evidence establishes both that Dr. McLeod adopted Mani's oral statements and that

Mani's May 5, 2011 statements encompassed all of Clinic's services to Keehn including

his August 15, 2011 treatment, we disagree with Keehn that the evidence is sufficient to

demonstrate a clear and unequivocal promise of a certain or particular result. (Pulvers v.

Kaiser Foundation Health Plan, Inc., supra, 99 Cal.App.3d at pp. 564-565; McKinney v.

Nash, supra, 120 Cal.App.3d at p. 442.) Mani's statements that the treatments would

"improve [Keehn's] skin condition" or were the "best to treat his condition" are too

generalized, vague and uncertain to give rise to an enforceable agreement. They are akin

to a statement that his result will be "good," which is insufficient. (Depenbrok v. Kaiser

Foundation Health Plan, Inc., supra, 79 Cal.App.3d at p. 171; Kershaw v. Tilbury (1932)

214 Cal. 679, 685, 689 [action alleging physician represented that radio treatment would

cure child's leg pain without an operation was an action sounding in tort, not contract];

33 McKinney v. Nash, at p. 442 [doctor's comment that hernia operation would be "simple

and without problem" does not satisfy the standard of particularity for an express

contract]; compare, Crawford v. Duncan, supra, 61 Cal.App. at p. 649 [plaintiff alleged

she had consented to radium treatments in reliance on the doctor's statement "that no

permanent scar of any kind would result from the treatment," which proved to be false].)

Mani's other statement concerning what Keehn would experience during the treatments

did not promise anything about their outcome or result.

Keehn's evidence does not establish or suggest that either Mani or Dr. McLeod

promised that the IPL treatment would not cause second degree burns, and we will not

imply any such agreement where an express agreement is required. (Accord, McKinney

v. Nash, supra, 120 Cal.App.3d at p. 442 ["Plaintiff cannot imply a contract from Dr.

Moon's failure to explain anything at all about the spinal anesthetic since the law requires

an express contract"].) The evidence may demonstrate a failure to obtain Keehn's

informed consent to treatment, but Keehn has not alleged such a cause of action, which as

we explain below sounds in negligence in any event. (See Cobbs v. Grant (1972) 8

Cal.3d 229, 239; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)

"If a trial court erroneously grants summary judgment when a factual dispute

exists but affects fewer than all causes of action, the appellate court may direct the trial

court to enter an order granting summary adjudication of the unaffected causes of action

if the moving party alternatively moved for summary adjudication." (People ex rel.

Government Employees Insurance Company v. Cruz (2016) 244 Cal.App.4th 1184,

34 1197.) Defendants did so here, and so we will direct the trial court to enter an order

granting summary adjudication of Keehn's breach of contract cause of action.

V. Medical Battery Cause of Action

Keehn contends he raised a factual dispute concerning whether Dr. McLeod

committed a battery on him on August 15, 2011, by evidence that she continued the laser

treatment after he cried out in pain and asked her to stop. According to Keehn, Dr.

McLeod's acts constituted an unconsented and offensive touching, meeting the legal

standard for a battery. Keehn concedes that lack of consent is an essential element of

medical battery and that he consented to the IPL procedure. However, he maintains the

consent form did not include, and he therefore did not consent to, extreme pain, burning,

scarring, permanent discoloration, or second degree burns, which he asserts "exceed[ed]

the terms and conditions of the consent . . . ."

The California Supreme Court has explained that in the medical context, a battery

occurs where "a doctor obtains consent of the patient to perform one type of treatment

and subsequently performs a substantially different treatment for which consent was not

obtained." (Cobbs v. Grant, supra, 8 Cal.3d 229, 239; see also id. at p. 240 ["The battery

theory should be reserved for those circumstances when a doctor performs an operation

to which the patient has not consented"].) "When the patient gives permission to perform

one type of treatment and the doctor performs another, the requisite element of deliberate

intent to deviate from the consent given is present." (Id. at p. 240.) In contrast, "when

the patient consents to certain treatment and the doctor performs that treatment but an

undisclosed inherent complication with a low probability occurs, no intentional deviation

35 from the consent given appears; rather, the doctor in obtaining consent may have failed to

meet his due care duty to disclose pertinent information. In that situation the action

should be pleaded in negligence." (Id. at pp. 240-241; see also So v. Shin (2013) 212

Cal.App.4th 652, 669; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

Thus, for example, in Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, on which

Keehn relies, the appellate court reversed an order sustaining a demurrer to the plaintiff's

battery cause of action based on his physician performing back surgery on the wrong

disks. (Id. at pp. 639-640, 645.) The plaintiff's consent form had given the doctor

permission to operate only on disk T8-9; the Court of Appeal observed the respondent

"may have committed battery by operating on appellant's T6-7 and T7-8 disks when he

did not have permission to operate on any disk other than T8-9." (Id. at p. 646.) It held

that the matter of whether the surgery was a "substantially different procedure" was a

factual question not capable of resolution by demurrer. (Id. at p. 647.) Likewise, in

Ashcraft v. King (1991) 228 Cal.App.3d 604, also relied upon by Keehn, where the

plaintiff consented only to a blood transfusion from family members but was given blood

from nonfamily donors, the Court of Appeal reversed a nonsuit on his battery cause of

action, holding the plaintiff presented sufficient evidence of battery to have the claim

determined by a jury. (Id. at pp. 610-613.)10

10 On the other hand, in Piedra v. Dugan, supra, 123 Cal.App.4th 1483, a nonsuit was properly granted where the evidence showed a plaintiff's parents had conditioned their consent for the defendant to administer medication on their knowledge of all the medications, but no evidence they had communicated that consent to the defendant physician. (Id. at pp. 1497-1498.) The court held that in the absence of defendant's 36 Here, no such factual question appears, but as a matter of law, Keehn's claim is

one for negligence. As reflected by the August 15, 2011 consent form presented in

support of defendants' motion (see footnote 2, ante), Keehn unconditionally consented to

undergo the IPL procedure. The record simply does not support Keehn's assertion that

"the consent form did not encompass the treatment [he] actually received." Nor does the

record support his claim that he did not sign a consent form that included a different

procedure—Fraxel—on the same day as the IPL. Defendants in fact submitted a consent

form dated August 15, 2011 and signed by Keehn for Keehn's Fraxel treatment.

Evidence that in connection with the IPL treatment Keehn suffered extreme pain,

blistering, second degree burns, scarring, and skin discoloration—some of which were

disclosed side effects and others "undisclosed inherent complication[s] with a low

probability" (Cobbs v. Grant, supra, 8 Cal.3d at p. 240)—establishes his claim is not one

for battery. (Accord, Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003)

107 Cal.App.4th 1260, [plaintiff's theory that he consented to only shoulder surgery with

repair, not surgery without repair, did not permit either an action for battery or

conditional battery].)

In reply, Keehn maintains that the mere fact he asked Dr. McLeod to stop the

treatment and she did not is a battery "apart from . . . lack of consent." He also claims

that the law is "divided" on the issue, and that his evidence demonstrates a valid cause of

action for battery under the reasoning of Rains v. Superior Court (1984) 150 Cal.App.3d

actual knowledge of the condition, there was no evidence of an intentional violation of the scope of consent necessary for a medical battery, an intentional tort. (Id. at pp. 1498- 1499.) 37 933, on the theory that defendants misrepresented the "down side" of what he could

expect from his treatments.

The arguments are without merit. As Rains itself acknowledges (Rains v. Superior

Court, supra, 150 Cal.App.3d at p. 941), the California Supreme Court in Cobbs

circumscribed the parameters of a battery claim in this context, where a plaintiff has

consented to particular treatment but is assertedly not advised of all potential

complications. (Rains, at p. 941; see Cobbs v. Grant, supra, 8 Cal.3d at p. 240.) Cobbs

does not permit Keehn to assert a claim for battery regardless of his consent. And

Keehn's evidence does not implicate Rains, which involved fraudulent misrepresentations

about a proposed procedure, which vitiated the patients' consent because it went to the "

'essential character of the act itself.' "11 (Rains, at p. 941; see Saxena v. Goffney, supra,

159 Cal.App.4th at p. 327.) Here, Keehn presents no evidence that defendants made a

misrepresentation going to the essential nature or character of the treatment—there is

nothing indicating he failed to understand he was to undergo IPL treatment, indeed he

expressly signed consent forms acknowledging such. Keehn's assertions that defendants

11 In Rains, psychiatrists obtained consent for treatment through misrepresentations about the therapeutic value of their services, when in fact they used the program as a pretext for other purposes, including to receive donations. (Rains v. Superior Court, supra, 150 Cal.App.3d at p. 936.) Rains held such allegations stated a claim for battery: "[T]he therapeutic versus nontherapeutic purpose of touching by a psychiatrist goes to the 'essential character of the act itself' and thus vitiates consent obtained by fraud as to that character." (Id. at p. 941.) The court explained that its conclusion was consistent with these principles because "where a physician intends to perform treatment for a nontherapeutic purpose when consent was given only for a therapeutic purpose" (id. at pp. 941-942), there has been an intentional deviation from the consent, as where a physician performs a wholly different treatment from that consented to. (Ibid.) 38 misrepresented the potential results of his treatment out a concern about generating a fee

or for some other personal purpose (a theory that Keehn has forfeited by raising it for the

first time in his reply brief, see Nick v. City of Lake Forest (2014) 232 Cal.App.4th 871,

879), or that he "did not understand the essential character of the invasive treatment," are

both insufficient and unsupported by any evidence.

We conclude summary adjudication is proper on Keehn's battery cause of action.

Given our conclusion, it is unnecessary to reach defendants' statute of limitations

argument as to this claim.

39

DISPOSITION

The judgment is reversed and the matter remanded with directions that the trial

court enter an order denying summary adjudication of Daniel Keehn's causes of action for

negligence and professional negligence and granting summary adjudication of Keehn's

claims for breach of contract and battery. Keehn is entitled to his costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

40