Mendez v. Tash CA2/1 ( 2023 )

Filed 12/8/23 Mendez v. Tash CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TOMAS MENDEZ et al., B326232
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 21STCV16759)
v.
RAYMOND M. TASH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
Catanzarite Law Corporation, Kenneth J. Catanzarite for
Plaintiffs and Appellants.
Neufeld Marks, Paul S. Marks for Defendants and
Respondents.
___________________________________
The California Dental Board (Dental Board) authorized a
partially disabled dentist to perform only limited procedures. In
a putative class action, two patients sued the dentist for battery,
alleging he performed unauthorized procedures. Plaintiffs moved
for class certification, offering an expert’s opinion that liability
could be established with common evidence, defendant’s own
billing records, which showed he performed unauthorized
procedures. Defendant countered with an expert who explained
the billing records showed only that defendant supervised the
practice of other dentists, not that he performed any procedures
himself. The trial court found that plaintiffs failed to establish
that class claims presented common questions of law and fact or
that class treatment would be superior to individual litigation,
and therefore denied certification.
Plaintiffs argue that denial of certification was improper
because in finding lack of commonality the court relied on
inadmissible evidence and an improper legal assumption. We
disagree, and therefore affirm.
BACKGROUND
A. Complaint
Raymond M. Tash, D.D.S. and Raymond M. Tash, D.D.S., A
Professional Corporation (Tash APC), operated a dental practice
in Lynwood doing business under the name St. Tomas Dentistry.
Tash also operated another practice in Huntington Park.
In 2013, Tash, who was partially disabled, entered into a
stipulated settlement and disciplinary order with the Dental
Board whereby his dental practice was to exclude “hands-on”
dental work, which was defined as “treatment, by surgery or
other method, of diseases and lesions, or the correction of
malposition of teeth or associated structures.” Tash was
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permitted to perform other dental work such as examination and
cleaning.
In 2019, Tash sold his Lynwood practice to Sung Lee,
D.M.D.
In 2022, Tomas and Dulce Mendez commenced this action
on behalf of themselves and a putative class contesting the
practice of Tash and Tash APC of performing dental procedures
prohibited by the Dental Board. In their first amended
complaint, plaintiffs assert causes of action on a class basis for
violation of Business and Professions Code section 17200 et seq.,
unjust enrichment, battery (lack of informed consent), and breach
of fiduciary duty, seeking actual and punitive damages and
declaratory relief. (Plaintiffs also assert individual claims for
professional negligence, constructive fraud, and fraudulent
concealment.)
The Mendezes allege Tash concealed the Dental Board
practice restriction and unlawfully charged patients and
consumers for dental services he was unauthorized to perform.
B. Class Certification
The Mendezes moved to certify a class of all persons for
whom Tash performed hands-on dental work within four years
prior to the complaint, which they estimated to be around 500
individuals.
The certification motion went through three rounds of
briefing, the court ultimately finding the class was sufficiently
ascertainable and numerous and the plaintiffs presented claims
typical of the class and could adequately represent it. These
findings are uncontested on appeal. The issues on appeal are
whether common questions of law and fact predominate and
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whether class treatment would be superior to individualized
litigation.
1. Motion
On these two issues the Mendezes at first argued they
could prove the class claims based on their own personal
observations of Tash’s practice while they were his patients. The
trial court found this theory “strained credulity,” and the
Mendezes have since abandoned it. We will therefore discuss
only their second theory.
As a second theory, the Mendezes argued that class claims
could be proven using common evidence: Tash’s billing and
practice records.
In support of the argument, the Mendezes and Celma
Ascencio, another Tash patient, declared that Tash treated them
with “hands-on” dental work, which they defined as dental
services performed with “gloved fingers” in their mouths.
Also in support, Lou Manolescu, an expert on dental
practice operations and billing practices, declared that she
reviewed patient records and electronic files from Tash’s
Lynwood practice which were now in the possession of Dr. Lee.
The electronic files and billing records were originated and
maintained on a practice management software system called
Soft Dent, and included historical contemporaneous entries at the
time of treatment that reflected dental work performed and
related billings.
Manolescu declared that Tash, identified by his National
Provider Identifier (NPI), billed and collected as the “ ‘Treatment
Dentist’ Doctor Number 1” for services that required hands-on
dentistry. Other doctors worked at the practice, each with a
separate NPI. Manolescu declared, “they did bill as well,” but
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their production was “far lower than what Dr. Tash billed,” and
none treated the Mendezes or Ascencio.
Manolescu declared that she queried Soft Dent to
determine the total number of patients “seen by Dr. Tash as
doctor 1,” and was able to generate “production records for
amounts billed for the work of Dr. 1 that tied to Dr. Tash.” “As a
result,” Manolescu declared, “historical billings [and] entries . . .
reflected [that] Dr. Tash as Treating Dentist did the work and
billed as the dentist who provided the treatment.”
Manolescu supported her declaration with 17 exhibits:
a. Exhibits 1 and 2: Qualifications
Exhibit 1 was Manolescu’s curriculum vitae. Exhibit 2 was
a printout of a search result from a federal Medicare/Medicaid
Web site indicating NPI was 1609918705.
b. Exhibit 3: American Dental Association
(ADA) Dental Claim Form
Exhibit 3 purported to be a claim form submitted to Blue
Cross of California for root canal therapy performed on Ascencio.
Box 48 of the form identified “St. Tomas Dentistry” as the billing
entity. Box 53 stated, “I hereby certify that the procedures as
indicated . . . have been completed.” The signature line stated,
“Signature on File.” Underneath this line the form stated,
“Signed (Treating Dentist),” and next to this someone had typed
“Raymond M. Tash, DDS.” Box 54 gave Tash’s NPI, 1609918705.
Manolescu confirmed this work was billed by “Doctor 1” in
Tash’s Soft Dent software, and declared that “electronic files with
Dr. Tash as the Treating Dentist for [Ascencio]” existed for the
years 2016, 2017, and 2018.
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c. Exhibits 4-7: Annual Production and
Income
Exhibits 4 through 7 were tables, apparently created by
Manolescu or pulled from Soft Dent, showing that an unidentified
entity made roughly $400,000 each year from 2016 to 2019.
Manolescu represented that this entity was Tash’s dental
practice.
d. Exhibits 8-11: Procedures by Code
Exhibits 8 through 11, titled “Procedures by Procedure
Code: Tash,” were tables, again apparently created by Manolescu,
showing that an unidentified entity performed dozens of hands-
on procedures each year from 2016 to 2019. Manolescu
represented that Tash was the “treating” dentist.
e. Exhibits 12-17: Procedure and Payment
Histories
Exhibits 12 through 17 were tables, prepared by
Manolescu, listing procedures performed on the Mendezes and
Ascencio. In a column titled “Treat Dr,” the entries were all
“Tash” or “Unknown.”
2. Opposition
In opposition to the certification motion, Tash declared the
Mendez and Ascencio declarations were “whole cloth”
fabrications. Even if he had not been warned by his disability
insurer that his practice would be monitored for unauthorized
activity, he had trouble even holding a glass of water or buttoning
his shirt, much less practicing hands-on dentistry. Instead, he
managed the office, hired and supervised “a minimum of ten
other dentists” working for him, checked their work, and oversaw
billing.
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In support of Tash’s opposition, Kathleen Johnson, a dental
practice consultant, contested Manolescu’s central proposition
that financial records from Dr. Tash’s former practice offered
common proof that Tash provided hands-on treatment. Johnson
declared that she “interpret[ed] the gist of Ms. Manolescu’s
declaration to be that, upon her review of a limited [number] of
financial documents relating to Dr. Tash’s former practice, it was
Dr. Tash alone who provided services to the various patients in
his practice, and there were no other practitioners who treated
patients.”
First, Johnson declared that she personally observed Tash’s
former practice over the “better part of a full day” at the behest of
a client who was interested in buying the practice. She was
provided detailed financial documentation, was given access to
employees on the premises, and watched the “associate-driven”
practice as it was being run. She saw an associate dentist
practice hands-on dentistry but never saw Tash do so. Johnson
declared that “based on the information [she] reviewed, based on
[her] own personal observations, and based on the
communications [she] had with Dr. Tash, his former staff, and his
counsel,” her “professional opinion [was] that Ms. Manolescu’s
opinion [was] unsupported.”
Johnson explained it was standard practice in the dental
industry for a dental corporation’s contract with an insurance
company to be under the corporation’s name, as occurred with
Tash’s practice. This resulted in the corporation becoming the
billing entity and Tash being considered the contracted provider.
This was standard because associate dentists would not then be
liable for income tax, and payments from insurance companies
and Denti-Cal, Medi-Cal’s dental program, would not need to be
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routed first to providers, who must then remit them to the
practice.
Johnson explained that every practitioner had an
individual NPI number but that did not mean the person
identified in the billing either by that number or as “Doctor No.
1” conducted hands-on dentistry. In other words, that “Doctor
No. 1 was the only billing doctor on the practice,” and billed
under Tash’s NPI number, did not mean he performed the
dentistry himself, just that he billed for it.
Johnson explained that the associate dentists “were in the
system not as billing entities but as the treatment providers,”
which allowed Tash to track their performance and, for example,
base any bonuses on their production.
Johnson explained that “[e]very dental software program
has the ability to break down procedures performed by code and
payments toward those procedures. However, all this shows is
that the practice was a general practice and was generating
income by performing all aspects of general dentistry.” Such
records had “nothing to do with who performed the work, as this
practice was established as an associate-run practice. It would
seem unusual for Dr. Tash to have paid for associate dentists, if
he himself were doing all the treatments—which is what Ms.
Manolescu is implying (if not outright stating).”
3. Ruling
As noted above, the trial court found the class was
sufficiently ascertainable and numerous and the plaintiffs
presented typical claims and could adequately represent the
class. The court also found the Mendezes could not prove class
claims based on their own personal observations of Tash’s
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practice while in the office. None of these findings is contested on
appeal.
Plaintiffs contest only the court’s reliance on Johnson’s
opinion.
In this respect, the court found that as Johnson explained,
Manolescu made a “leap in logic” by stating Tash’s practice of
billing as Doctor No. 1 showed he actually performed hands-on
dentistry, and “fail[ed] to fill in missing gaps” between Tash’s
billing and treatment practices.
The court found that “[w]ithout Plaintiffs being able to
show what common evidence would be set forth to establish Dr.
Tash performing hands-on dentistry on a class-wide basis (not
just billing entries which would be the same whether he
performed the services or whether an associate did), all that can
be deduced is that each class member would need to testify as to
‘whether Dr. Tash in fact performed any services on the person;
what services were performed; and then, what damages were
suffered.’ ”
Even if billing records could indicate some aspect of
classwide evidence, the court found, each contact may or may not
have involved hands-on dentistry, and plaintiffs offered no viable
option for determining which did and which did not. The court
found, “To determine whether the services provided would fit the
Dental Board’s definition would, no doubt, require individualized
inquiry into the medical records of patients and/or their
testimony as to what services were actually provided and by
whom. Additionally, the class members would need to testify as
to what injury, if any, was incurred.”
Regardless of the nature of dental billing, the court found,
plaintiffs’ causes of action for battery, lack of informed consent,
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and breach of fiduciary duty would require inquiries into what
information was known to individual patients and what consent
was given.
The court therefore concluded that plaintiffs failed to show
that common questions of fact and law would predominate over
individualized ones.
Given that the plaintiffs failed to establish predominant
common questions, the court found that manageability became a
concern, yet plaintiffs offered no case plan by which litigation
could avoid devolving into hundreds of mini-trials. The court
therefore found that given the number of class members and
significant amounts at issue—an average of $3,000 per patient—
class management offered no benefit over litigating the matter
individually.
Therefore, the court denied certification.
Plaintiffs appeal.
DISCUSSION
Plaintiffs contend the Johnson opinion was inadmissible
and the court ignored their theory of recovery.
A. Standard of Review
Code of Civil Procedure section 382 authorizes a suit to be
tried as a class action “when the question is one of a common or
general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the
court.” Class certification requires demonstration of an
ascertainable and sufficiently numerous class, a well-defined
community of interest, and the superiority of proceeding as a
class. (Brinker Restaurant Corp. v. Superior Court (2012) 53
Cal.4th 1004, 1021 (Brinker).)
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The “community of interest” requirement has three factors:
(1) predominant common questions of law or fact; (2) class
representatives with claims or defenses typical of the class; and
(3) class representatives who can adequately represent the class.
(Brinker, supra, 53 Cal.4th at p. 1021; Ayala v. Antelope Valley
Newspapers, Inc. (2014) 59 Cal.4th 522, 529-530 (Ayala).)
Generally, “ ‘if the defendant’s liability can be determined by
facts common to all members of the class, a class will be certified
even if the members must individually prove their damages.’ ”
(Brinker, at p. 1022; Cochran v. Schwan’s Home Service, Inc.
(2014) 228 Cal.App.4th 1137, 1142 (Cochran).)
In reviewing a trial court’s denial of class certification, we
examine “whether the operative legal principles, as applied to the
facts of the case, render the claims susceptible to resolution on a
common basis.” (Ayala, supra, 59 Cal.4th at p. 530; Brinker,
supra, 53 Cal.4th at pp. 1023-1025.) “ ‘The certification question
is “essentially a procedural one that does not ask whether an
action is legally or factually meritorious.” ’ ” (Brinker, at p. 1023.)
Courts focus instead on what type of questions—common or
individual—are likely to arise, and whether proceeding as a class
action, as compared to other forms of action, is a superior method
of resolving these questions. (Sav-On Drug Stores, Inc. v.
Superior Court (2004) 34 Cal.4th 319, 327, 339 & fn. 10 (Sav-
On).)
“Although predominance of common issues is often a major
factor in a certification analysis, it is not the only consideration.
In certifying a class action, the court must also conclude that
litigation of individual issues, including those arising from
affirmative defenses, can be managed fairly and efficiently.
[Citation.] ‘[W]hether in a given case affirmative defenses should
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lead a court to approve or reject certification will hinge on the
manageability of any individual issues.’ ” (Duran v. U.S. Bank
Assn. (2014) 59 Cal.4th 1, 28-29.) “ ‘Individual issues do not
render class certification inappropriate so long as such issues
may effectively be managed.’ ” (Id. at p. 29.) “Trial courts must
pay careful attention to manageability when deciding whether to
certify a class action. In considering whether a class action is a
superior device for resolving a controversy, the manageability of
individual issues is just as important as the existence of common
questions uniting the proposed class. If the court makes a
reasoned, informed decision about manageability at the
certification stage, the litigants can plan accordingly and the
court will have less need to intervene later to control the
proceedings.” (Ibid.)
“We review the trial court’s ruling for abuse of discretion
and generally will not disturb it, ‘ “unless (1) it is unsupported by
substantial evidence, (2) it rests on improper criteria, or (3) it
rests on erroneous legal assumptions.” ’ ” (Ayala, supra, 59
Cal.4th at p. 530.) If the court’s “reasons for granting or denying
certification . . . are erroneous, we must reverse, whether or not
other reasons [could have been] relied upon [to] support[] the
ruling.” (Ibid.; Cochran, supra, 228 Cal.App.4th at p. 1143.) In
this respect, “ ‘appellate review of orders denying class
certification differs from ordinary appellate review. Under
ordinary appellate review, we do not address the trial court’s
reasoning and consider only whether the result was correct.
[Citation.] But when denying class certification, the trial court
must state its reasons, and we must review those reasons for
correctness. [Citation.] We may only consider the reasons stated
by the trial court and must ignore any unexpressed reason that
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might support the ruling.’ ” (Cochran, at p. 1143.) “In other
words, we review only the reasons given by the trial court for
denial of class certification, and ignore any other grounds that
might support denial.” (Bartold v. Glendale Federal Bank (2000)
81 Cal.App.4th 816, 829, overturned on other grounds due to
Legislative Action in 2001 Cal. Legis. Serv. Ch. 560.)
Because trial courts “ ‘are ideally situated to evaluate the
efficiencies and practicalities of permitting group action,’ ” they
are “ ‘afforded great discretion’ ” in evaluating the relevant
factors and ruling on a class certification motion. (Sav-On, supra,
34 Cal.4th at p. 326.)
B. The Court’s Denial of Certification Was Supported
by Substantial, Admissible Evidence
Plaintiffs argue that Johnson’s opinion contesting
Manolescu’s opinion was inadmissible. We disagree.
A “court may consider only admissible expert opinion
evidence at class certification.” (Apple Inc. v. Superior Court
(2018) 19 Cal.App.5th 1101, 1117 (Apple).) “The reasons for such
a limitation are obvious. A trial court cannot make an informed
or reliable determination on the basis of inadmissible expert
opinion evidence. And certifying a proposed class based on
inadmissible expert opinion evidence would merely lead to its
exclusion at trial, imperiling continued certification of the class
and wasting the time and resources of the parties and the court.”
(Ibid.)
We review the admissibility of evidence de novo. (Apple,
supra, 19 Cal.App.5th at p. 1117.)
“If a witness is testifying as an expert, his testimony in the
form of an opinion is limited to such an opinion as is: [¶] (a)
Related to a subject that is sufficiently beyond common
13
experience that the opinion of an expert would assist the trier of
fact; and [¶] (b) Based on matter (including his special
knowledge, skill, experience, training, and education) perceived
by or personally known to the witness or made known to him at
or before the hearing, whether or not admissible, that is of a type
that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates, unless
an expert is precluded by law from using such matter as a basis
for his opinion.” (Evid. Code, § 801.) An opinion based in whole
or in part on an improper matter may be excluded. (Id., § 803.)
“[U]nder Evidence Code sections 801, subdivision (b), and
802, the trial court acts as a gatekeeper to exclude expert opinion
testimony that is (1) based on matter of a type on which an expert
may not reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative.” (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 771-772 (Sargon).) “This means that a court may
inquire into, not only the type of material on which an expert
relies, but also whether that material actually supports the
expert’s reasoning. ‘A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered.’ ” (Id. at p. 771.)
In considering the expert evidence, a “trial court must
examine the type of material on which an expert relies, whether
that material actually supports the expert’s reasoning, and
whether the expert’s methodology is sound.” (Apple, supra, 19
Cal.App.5th at p. 1125.) “ ‘[T]he expert’s opinion may not be
based “on assumptions of fact without evidentiary support.” ’ ”
(Sargon, supra, 55 Cal.4th at p. 770.)
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Here, Johnson opined that Manolescu’s central proposition,
that Dr. Tash’s financial records offered common proof that he
provided hands-on dentistry, was unsupported. She based this
opinion on the information she reviewed about Tash’s practice,
her own personal observations, and communications she had with
Dr. Tash, his former staff, and his counsel. This is the sort of
matter on which an expert may rely. (Evid. Code, § 801, subd. (b)
[expert opinion may be based on matter “perceived by or
personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type
that reasonably may be relied upon by an expert”].) Johnson’s
opinion was therefore admissible.
Noting that Johnson interpreted the gist of Manolescu’s
opinion to be that only Tash provided dental services, plaintiffs
argue this constitutes an assumption that is inadmissible
because it is unsupported by the evidence.
First, Johnson’s interpretation of Manolescu’s position is
not an assumption but at most a mischaracterization. One
expert’s mischaracterization of another’s position does not render
the first expert’s opinion inadmissible, merely unpersuasive.
In any event, Johnson stated only that “the gist” of
Manolescu’s declaration was that Tash alone provided services,
and qualified that this was “what Ms. Manolescu [was] implying
(if not outright stating).”
This is a fair characterization. Tash, Manolescu and
Johnson noted the participation of associate dentists. Tash
declared that “a minimum of 10” associates worked at the
practice. Johnson declared the practice was “associate-driven.”
And Manolescu acknowledged that other dentists worked there.
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But Manolescu’s declaration is virtually silent as to the
associates’ contributions. She declared only that the associate
dentists “did bill as well,” but their production was “far lower
than what Dr. Tash billed,” and none treated the Mendezes or
Ascencio.
It is therefore fair to say that the gist of Manolescu’s
opinion, and the clear implication, was that only Tash provided
services.
Plaintiffs argue that Johnson’s mischaracterization of
Manolescu’s opinion “permeates and drives her remaining
opinions” that Manolescu’s production numbers pertained only to
Tash. But they admit Manolescu’s numbers did pertain only to
Tash. We fail to see the error in Johnson claiming something
that plaintiffs readily admit.
Plaintiffs argue Johnson’s opinions are inadmissible
because they are based upon matters which are not reasonably
comparable. (See Sargon, supra, 55 Cal.4th at p. 770 [expert may
not base opinion upon a comparison if the matters compared are
not reasonably comparable].) This is so, they argue, because
Johnson “focuses on” a billing dentist to challenge Manolescu’s
conclusion that Tash was the treating dentist.
Johnson’s opinion had nothing to do with any comparison
between a billing and a treating dentist, she distinguished them
to challenge Manolescu’s opinion that Doctor Number 1, the
billing dentist, was also the treating dentist.
We assume Manolescu meant to demonstrate that Tash’s
activities could be distinguished from those of the associate
dentists by selective billing queries made of the Soft Dent
software, and in this manner class claims could be demonstrated
by easily obtained common proof. But Manolescu showed no such
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selection taking place—she referenced only Tash’s billings. It is
therefore at least conceivable that selective billing queries would
not have provided common proof of Tash’s treatment activities
because a significant portion of work done by the associate
dentists fell under Tash’s “Doctor Number 1” moniker in the
billing. Indeed, Manolescu hinted as much when she declared
that Tash billed far more than the other dentists.
This was exactly Johnson’s opinion, which the trial court
was entitled to credit.
Plaintiffs argue that a community of interest and
superiority of class treatment were supported by substantial
evidence. But our review is to determine whether substantial
evidence supported the trial court’s ruling, not whether it
supported a ruling the court did not make.
C. The Court Considered Plaintiffs’ Theory of Recovery
Plaintiffs argue the trial court relied on an erroneous legal
assumption by ignoring their theory of recovery. They argue
their theory is that Tash failed to disclose his disability and
therefore performed unauthorized dentistry without providing
informed consent. They argue that “contrary to the court’s
characterization,” they are not seeking damages on a class basis
for injuries sustained because Tash rendered treatment below the
standard of care.
To support the argument, plaintiffs cite one sentence from
the court’s order denying certification: “Additionally, the class
members would need to testify as to what injury, if any, was
incurred.”
We read this statement, which comes at the end of a
discussion about what proof would establish that hands-on
dentistry occurred, simply as describing the final element of
17
plaintiffs’ informed consent claim, not reflecting an assumption
that plaintiffs claim personal injury caused by professional
negligence.
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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