Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M73643
Bamattre-Manoukian, ACTING P.J.
In this medical malpractice action, plaintiff David Dawson appeals from a judgment of dismissal entered after defendants Dr. Cesar Sinnaco, Dr. Timothy Friederichs, Dr. Nicolae Luca, Dr. Chandrika Krishna, nurse Roberto DeLuna, and medical appeal analyst Allison Brager successfully moved for summary judgment. Dawson contends that the trial court’s (1) admission of and reliance on the defendants’ expert declaration in granting the motion for summary judgment was erroneous and an abuse of discretion; (2) refusal to allow Dawson to depose defendants’ expert was erroneous, an abuse of discretion, and a violation of due process; and (3) granting of defendants Sinnaco, DeLuna, Krishna and Brager’s motion for summary judgment was an abuse of discretion. We disagree with these contentions and, therefore, affirm the judgment.
BACKGROUND
Beginning in November 1998, while Dawson was an inmate at the Substance Abuse Training Facility at Corcoran (Corcoran), he was treated by Dr. Deering for hemorrhoids. At the time, Dawson had insignificant and infrequent rectal bleeding, and he was treated with suppositories, stool softeners and fiber. Dawson contends that Dr. Deering told him th*-at he was being referred to a surgeon, but that he never saw one. Dr. Castillo was the Chief Medical Officer at Corcoran during Dawson’s incarceration there.
On January 4, 2001, Dawson was transferred to the Correctional Training Facility at Soledad (Soledad). Dr. Friedman was the Chief Medical Officer there. By May 30, 2001, Dawson was complaining of recurring bloody stools. Dr. Robertson saw Dawson that day and ordered a flexible sigmoidoscopy. Dr. Rosenthal performed the procedure on June 7, 2001, diagnosed large hemorrhoids, and prescribed Fibercon. Dawson continued to complain of constant blood loss and dizziness. Dr. Robertson saw Dawson again on January 16, 2002, and diagnosed irritable bowel syndrome. Dr. Dinh saw Dawson on April 15, 2002, and ordered a barium enema x-ray. The procedure was performed on April 23, 2002, and revealed that defendant had visible hemorrhoids but did not have an abnormal colon.
Believing that he had not received adequate treatment, Dawson filed an inmate appeal on May 6, 2002. Dr. Luca saw Dawson on May 7, 2002, did a rectal examination, and prescribed suppositories for external hemorrhoids. As a result of the inmate appeal, Dr. Friederichs saw Dawson on May 23, 2002. Following a rectal examination, Dr. Friederichs diagnosed large hemorrhoids, prescribed suppositories and stool softeners, and told Dawson that surgery would be considered if his symptoms persisted.
Dawson returned to Dr. Friederichs on July 15, 2002, and told him that the prescribed treatment was not working. Dawson contends that Dr. Friederichs told him at that time that a consultation with Dr. Robertson, the staff specialist, would be ordered. On October 29, 2002, Dawson filed a second inmate appeal contending that he had not been seen by the staff specialist as ordered by Dr. Friederichs. On January 7, 2003, Dr. Naku examined Dawson, diagnosed large hemorrhoids, and ordered a surgical referral. On April 17, 2003, Brager responded to Dawson’s second appeal stating, “You are now scheduled for an evaluation of your condition with a staff specialist as ordered by Dr. Friederichs. You will be ducated [sic] within the next 3-4 weeks.”
On August 1, 2003, Dr. Sinnaco saw Dawson, who complained of rectal bleeding, abdominal pain, and a painful penile discharge during bowel movements. Dr. Sinnaco diagnosed prostititus, prescribed medication, and ordered a follow-up visit in four weeks. On September 5, 2003, Dawson filed a third inmate appeal contending that he had not been seen by the staff specialist. Dr. Krishna responded to the appeal on September 16, 2003, telling Dawson that he had chronic hemorrhoids and that he needed to continue his regimen of suppositories, stool softeners and fiber. Dr. Krishna also ordered blood tests, which were performed on September 24, 2003.
Dr. Robertson saw Dawson on October 6, 2003. Dawson complained of dizziness, abdominal pain, blood loss, and a painful penile discharge during bowel movements. Dr. Robertson reviewed the results of Dawson’s blood tests and told Dawson that his dizziness was due to blood loss anemia. Dr. Robertson performed a rectal examination and ordered an upper-GI examination. Dawson had the upper-GI examination on October 7, 2003, and a follow-up exam with Dr. Robertson on October 16, 2003. Because the upper-GI examination did not reveal any bleeding, Dr. Robertson ordered an EGD examination. Dawson contends that Dr. Robertson ordered DeLuna that day to schedule the EGD examination for the following week.
An EGD examination is an examination of the esophagus, stomach and duodenum.
Dr. Luca saw Dawson on October 25, 2003. Dr. Luca agreed with Dr. Robertson that hemorrhoids were not the cause of Dawson’s blood loss and ordered an EGD. Dawson contends that Dr. Luca ordered DeLuna to schedule the procedure. Dr. Robertson saw Dawson on November 17, 2003, and ordered another flexible sigmoidoscopy. Dr. Robertson performed the procedure on Dawson on November 21, 2003, which revealed large hemorrhoids. Dr. Robertson ordered a follow-up visit and, on December 5, 2003, Dr. Robertson again ordered an EGD examination.
On December 15, 2003, Brager assured Dawson that the ordered medical procedures would be carried out. On December 19, 2003, Dr. Robertson again ordered an EGD examination for Dawson, as well as a colonoscopy. Dawson contends that Dr. Robertson ordered DeLuna to schedule the EGD examination. The EGD examination was performed on January 5, 2004, by Dr. Robertson, and was negative for any stomach bleeding. On January 27, 2004, Dawson had a colonoscopy at Natividad Medical Center, which revealed only hemorrhoids and a small polyp, and the polyp was removed. Dr. Friederichs saw Dawson on February 2, 2004, and referred him to a surgeon. Dawson had surgery in August 2004, during which his internal hemorrhoids and an anal fistula were removed.
On March 18, 2005, Dawson filed, in propria persona, a medical malpractice complaint against Drs. Deering and Castillo from Corcoran; Drs. Friedman, Rosenthal, Dinh, Luca, Friederichs, Sinnaco, Krishna, and Robertson from Soledad; and nurse DeLuna and medical appeals analyst Brager from Soledad. The complaint alleged that each of the defendants owed Dawson a professional duty and that, because of the defendants’ negligent breach of their duties, Dawson suffered bodily and psychological injury.
On July 25, 2005, defendants Drs. Deering, Friedman, Krishna and Rosenthal, as well as medical appeal analyst Brager, filed a motion for judgment on the pleadings. Dr. Dinh separately filed a motion for summary judgment. On August 23, 2005, the trial court granted Dr. Dinh’s motion for summary judgment. It also granted the motion for judgment on the pleadings as to Drs. Friedman, Deering and Rosenthal, but denied the motion as to Brager and Dr. Krishna.
On October 28, 2005, the remaining defendants in the action (Drs. Sinnaco, Friederichs, Luca, and Krishna, as well as nurse DeLuna and medical appeal analyst Brager) filed a motion for summary judgment. The defendants contended that the medical care provided to Dawson was within the standard of care, and that there was no merit to Dawson’s claims that the staff who responded to his inmate appeals committed medical negligence. The defendants’ contentions and their separate statement of undisputed material facts were based upon declarations from Drs. Jack Stage and Krishna, as well as declarations from Brager and defendants’ counsel.
Dawson filed an ex parte application on November 2, 2005, seeking a court-appointed expert who could investigate and file a declaration in support of his claims. The court denied the application on November 8, 2005. Dawson filed opposition to the motion for summary judgment on January 13, 2006, that included declarations from Dawson as well as an objection to Dr. Stage’s declaration. On February 3, 2006, the court continued the hearing on the summary judgment motion to April 7, 2006, to allow Dawson to depose Dr. Stage. Dawson filed an ex parte application on March 6, 2006, seeking to schedule a written deposition hearing of Dr. Stage before a court commissioner and an official court reporter with a waiver of costs and fees. The court denied the motion on March 17, 2006, as there was “no showing the motion was served on opposing counsel.” Dawson filed a declaration on March 30, 2006, stating that the court’s error in denying his application “made it virtually impossible” for him to submit an expert declaration in opposition to the motion for summary judgment.
The parties argued the motion for summary judgment at the April 7, 2006 hearing, and the court took the matter under submission. The court filed its order granting the motion on June 5, 2006. A judgment of dismissal was filed on August 3, 2006, and Dawson timely filed a notice of appeal from the judgment.
The record on appeal does not include the reporter’s transcript of the hearing. This court granted Dawson’s request to augment the record with a transcript of the hearing, but Dawson’s requests for waiver of the required fees for preparation of the transcript were denied by this court and the superior court, and Dawson failed to deposit the fees.
Dawson filed his notice of appeal on June 13, 2006. On August 22, 2006, this court filed an order, on its own motion, deeming Dawson’s notice of appeal filed as of August 3, 2006.
DISCUSSION
Under summary judgment law, a defendant may move the court for summary judgment in his or her favor on a cause of action when the defendant contends that the action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The court must grant the motion if all the papers submitted show that there is no triable issue of material fact, and that the defendant is entitled to a judgment as a matter of law. (Id., subd. (c).) The defendant must support the motion with evidence, which may include declarations and depositions. (Id., subd. (b)(1).) The plaintiff may oppose the motion, and, where appropriate, must present supporting evidence, which may include declarations and depositions. (Id., subd. (b)(2).) In ruling on the motion, the court must consider all of the evidence set forth by the parties and all of the inferences reasonably drawn therefrom (id., subd. (c)), and must view such evidence and such inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
In moving for summary judgment, a defendant has met his or her burden of showing that a cause of action has no merit if he or she has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exist as to that cause of action or defense thereto. The plaintiff may not rely on the mere allegations or denials of his pleadings to show that a triable issue of material fact exists, but must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or defense. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
“On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California’s traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Expert Declaration
The fourth and fifth causes of action in Dawson’s complaint were against Drs. Luca and Friederichs, respectively. Dawson alleged that the doctors each breached their individual duty of due care by failing to provide him with adequate treatment based on the information in his medical file.
In its ruling granting the motion for summary judgment as to Drs. Luca, Friederichs, and Sinnaco, the court stated: “These defendants are medical doctors who treated Plaintiff for hemorrhoids. Plaintiff claims the conservative care Defendants provided was not successful in treating his condition, and Defendants ‘failed to elevate treatment.’ [¶] In this motion Defendants submit the declaration of Dr. Jack Stage, a medical expert in the area of internal medicine. After reviewing Plaintiff’s medical records and the pertinent literature, Stage concludes that Plaintiff’s treating physicians ‘complied with the standard of medical care in the care and treatment of plaintiff.’ [¶] The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a medical malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. [¶] Plaintiff has submitted no expert evidence indicating that Defendants’ conduct was not within the standard of care and is unqualified to speak to the subject himself. Since Defendants’ evidence is uncontested, Defendants’ motion is granted.”
The tenth cause of action in Dawson’s complaint was against nurse DeLuna. Dawson alleged that DeLuna was given a direct order on three different occasions by two different doctors to schedule Dawson for an EGD examination in order to locate the source of his blood loss, but DeLuna failed to follow the orders, resulting in Dawson’s pain and suffering.
In its ruling granting the motion for summary judgment as to DeLuna, the trial court stated in part: “Dr. Stage states in his declaration that an EGD exam was performed on 1/2/04 and the results were ‘essentially normal.’ Thus Plaintiff was not harmed by any delay in the scheduling of the exam. Plaintiff’s evidence fails to raise a triable issue of fact. Defendant’s motion is granted.”
Dawson contends that the trial court’s admission of, and reliance on, Dr. Stage’s declaration in granting the motion for summary judgment was erroneous and an abuse of discretion. He argues that the declaration is “insufficient, irrelevant, and unreliable,” as the declaration “merely asserts that the Defendants met the standard of care required of them without any supportive factual evidence, leaving the question of whether Defendants fulfilled their duty of care to [Dawson], particularly as to the effectiveness of the treatment.” He argues that his complaint against the physician defendants, excluding Dr. Sinnaco, is that they did not elevate treatment when the standard treatment for hemorrhoids was ineffective. He also argues that the fact that the examination he alleged DeLuna failed to timely schedule had a normal result did not absolve DeLuna from meeting his duty to provide due care. Dawson acknowledges that he objected to the admission of Dr. Stage’s declaration on these grounds, and that the trial court overruled his objections.
Dawson argues for the first time in his reply brief that Dr. Stage’s declaration was inadmissible because there was no showing that he was qualified to give expert opinion, because the declaration sets forth “only conclusions, opinions, or ultimate facts,” and because there was no showing that the literature Dr. Stage relied on for his expert opinion was reliable. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) “The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ [Citation.]” (Ibid.) Dawson has offered no reason for failing to assert these arguments earlier. Accordingly, “[w]e will not spend any judicial resources resolving th[ese] untimely claim[s].” (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.)
“The ‘law has never held a physician or surgeon liable for every untoward result which may occur in medical practice’ [citations] but it ‘demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he [or she] exercise ordinary care in applying such learning and skill to the treatment of his [or her] patient’ [citation]. No different or ‘higher degree of responsibility’ is imposed ‘in making a diagnosis than in prescribing treatment.’ [Citations.]” (Huffman v. Lindquist (1951) 37 Cal.2d 465, 473.)
“ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ [Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 410; accord, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)
In his declaration, Dr. Stage states that he reviewed Dawson’s medical records from Soledad and the Natividad Medical Center, reviewed a list of medications prescribed to Dawson during the relevant time period, and reviewed current medical literature regarding the diagnosis and treatment of hemorrhoids. Based on his review of the records and the medical literature, Dr. Stage concluded that “Dawson’s treating physicians complied with the standard of care in the care and treatment of Dawson, who suffered from chronic internal and external hemorrhoids. In addition, my review of Mr. Dawson’s medical record showed that an EGD examination . . . was performed on Mr. Dawson in January 2, 2004, which was essentially normal. This was the examination Mr. Dawson claimed was ordered by Dr. Robertson but was not scheduled by . . . DeLuna.”
“It appears from the medical record that Mr. Dawson had Grade I or possibly Grade II internal hemorrhoids and external hemorrhoids since 1998. Grade I hemorrhoids are, by definition, internal hemorrhoids with painless bleeding and no prolapse (hemorrhoid protrudes from rectum). Grade II hemorrhoids are internal hemorrhoids with painless bleeding and prolapse with defecation and spontaneous reduction. Prolapse is an observable condition. None of the doctors who examined Mr. Dawson documented prolapse in the record; nor does the record document that Mr. Dawson complained of prolapse.”
“The treatment of internal hemorrhoids is determined by the medical grading assigned to the hemorrhoids which in turn determines the treatment recommendation. External hemorrhoids are not graded. They are monitored, and over time, if they thrombose (clot) they may be surgically removed. The medical standard for treatment of grade I internal hemorrhoids is high fiber intake, stool softeners and large intake of liquids. The medical standard for treatment of grade II hemorrhoids is the same, except that if treatment is not successful, there is non-surgical treatment which is recommended, such as rubber banding, sclerosing solution injections or bipolar coagulation. Surgery to excise Grade I or Grade II internal hemorrhoids is not generally recommended. External hemorrhoids are treated with salves and proper rectal cleansing.”
“The medical record shows that the doctors provided Mr. Dawson the correct treatment for Grade I and Grade II internal hemorrhoids and external hemorrhoids. Between 2001 and 2003, the doctors regularly prescribed suppositories, stool softeners and fiber con tablets for internal hemorrhoids which also alleviate most symptoms of external hemorrhoids. Hemorrhoids are a chronic condition requiring long-term care with patient cooperation. The conditions may flare-up regardless of treatment given. It is not unusual for simple measures to be given for prolonged periods of time.”
“Mr. Dawson’s outstanding complaints about rectal pain from his hemorrhoidal condition is not substantiated by my review of the medical record. There is no mention of pain being reported in any progress note. To the contrary, Mr. Dawson was noted to have ‘painless’ bleeding on May 30, 2001 and on October 29, 2003. Internal hemorrhoids do not generally cause pain (external hemorrhoids only cause pain when they thrombose) unless they are eroded, ulcerated, gangrenous or thrombosed, the latter relating to external hemorrhoids only. Mr. Dawson did not exhibit any of these signs. Rectal spasm may cause pain and on one occasion, a doctor found Mr. Dawson’s rectum to be in spasm, but this condition is not necessarily due to hemorrhoids, and may occur without any obvious pathology.”
“Mr. Dawson’s complaint of penile discharge is also not related to his hemorrhoids. His complaint of irritable bowel syndrome is a disease of unknown etiology and not attributable to hemorrhoids. His complaint of dizziness documented in the record is not correlated with his severe anemia, nor anything else consistent, which could be determined from the medical record, and is not related to hemorrhoids.”
“Mr. Dawson did present with microcytic hypochromic anemia, low grade. . . . This anemia was of such a mild degree so as to be essentially asymptomatic. Severe anemia was noted on blood counts done on September 24, 2003, October 14, 2003, and March 19, 2004, but Mr. Dawson presented no symptoms attributable to this condition, and did not report the massive rectal bleeding (only fist-sized clots on rare occasions) associated with the severe anemia that was reported by the laboratory.”
“The record showed that Mr. Dawson had a visualized hiatus hernia with reflux and a clinical diagnosis of gastroesophageal reflux disease (GERD)(heartburn) which was the most likely source of the bleeding. An upper gastrointestinal bleed, possibly secondary to a peptic ulcer was correctly suspected by gastroenterologist, Dr. Robertson by October 6, 2003, and Mr. Dawson was started on appropriate medicines for ulcers (Prilosec).”
“It appears that Mr. Dawson may have been responsible for a failure to refill medications as needed and this likely contributed to the chronic exacerbation of his hemorrhoids. When Mr. Dawson’s prescription for stool softeners in January 2003 expired, the record shows that he did not refill the prescription and he did not visit the clinic again until August 2003. When seen by Dr. Krishna on September 6, 2003, the record shows that Mr. Dawson was counseled on the necessity of good bowel care and the necessity to continue medications and the necessity to return to the clinic for treatment of flare-ups of his condition.”
The trial court did not err or abuse its discretion in admitting and relying on Dr. Stage’s declaration. Dr. Stage’s opinion was that Drs. Luca and Freiderichs did not breach the standard of care of the medical community in diagnosing and treating Dawson for hemorrhoids. Dr. Stage’s opinion was also that, because the EGD examination was essentially normal, any failure by nurse DeLuna to schedule an earlier EGD examination was not the proximate cause of Dawson’s continued physical discomfort. The trial court could not properly disregard this expert evidence regarding the rendering of the defendants’ professional services. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001.)
Denial of the Motion to Depose Dr. Stage
The proof of service for the ex parte application for a court commissioner and an official court reporter to conduct a written deposition hearing of Dr. Stage that was filed on March 6, 2006, indicates that a copy of the application was mailed only to the superior court. Accordingly, the trial court denied the application on March 17, 2006, as there was “no showing the motion was served on opposing counsel.” In his March 30, 2006 declaration in support of his opposition to defendants’ motion for summary judgment, Dawson stated that he first submitted his ex parte application with an application for waiver of additional court fees and costs and an attached proposed order on February 5, 2006. The proof of service for that ex parte application that is attached to the declaration indicates that copies were mailed to the superior court and to counsel for defendants. However, as Dawson concedes, the court returned the application unprocessed on February 23, 2006, stating, “You must submit your application for fee waiver with an Order.”
Dawson now contends the court erred by denying his application “based on inaccurate and false circumstances,” thereby denying him due process. He argues that the court’s reason for denying the application “was erroneous as the Proof of Service clearly shows that the motion which was signed and dated on February 5, 2006 was served on opposing counsel on February 5, 2006.” However, the proof of service for the application that was filed with the court on March 6, 2006, which is the application the court denied on March 17, 2006, does not show that the motion was served on opposing counsel.
In his reply brief, Dawson contends that the court asked defendants’ counsel at the April 7, 2006 hearing on the motion for summary judgment whether she had received a copy of the application, and she said she did, yet the court still denied the application. However, as we stated (see ante, fn. 2, at p. 6) the reporter’s transcript of the April 7, 2006 hearing is not a part of the record on appeal.
Even assuming that the trial court erred or abused its discretion in denying the application for the reasons stated in the March 17, 2006 order, we do not find that Dawson was denied due process. By his application, Dawson sought an order scheduling a written deposition hearing of Dr. Stage before a court commissioner and a court reporter, with a waiver of all fees and costs, including any payment to Dr. Stage, and an order that Dr. Stage attend the hearing. Dawson’s application stated that “the Court found that the circumstances were proper to allow the plaintiff a continuance to depose the defendants’ expert. Thus because the plaintiff is a pro se prisoner granted leave to prosecute his claim with a full waiver of Court Fees and Costs, it would be an act of fairness for the Court to assist the plaintiff in conducting a written deposition hearing of Dr. Stage.” Dawson did not cite any authority supporting his claim that the court could waive any deposition costs sought by Dr. Stage. In addition, although Dawson cited section 259, subdivision (d), for the proposition that a court commissioner “has the power to . . . take affidavits and depositions in any action or proceeding in any of the courts of this state,” the statute does not support his claim. The statute states in relevant part: “Subject to the supervision of the court, every court commissioner shall have the power to do all of the following: [¶] . . . [¶] (d) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner.” (Ibid.) As Dawson’s application was not supported by citation of applicable authority, the trial court could properly deny the application without denying Dawson due process.
The Summary Judgment
Dawson contends that the trial court abused its discretion in granting the motion for summary judgment in favor of Drs. Krishna and Sinnaco, and as to nurse DeLuna and medical appeal analyst Brager. First, Dawson argues that Dr. Stage makes no mention of the specific allegations against Dr. Sinnaco in his declaration. Second, Dawson argues that the arguments Brager and Dr. Krishna asserted in their summary judgment motion were previously asserted in their motion for judgment on the pleadings, thus the denial of the motion for judgment on the pleadings should have precluded the granting of the motion for summary judgment. Third, Dawson argues that a triable issue of fact remains as to whether DeLuna complied with his duty to provide due care to Dawson.
Dawson alleges in his seventh cause of action that Dr. Sinnaco provided no treatment for his hemorrhoids, blood loss, and dizziness. Dawson alleges that Dr. Sinnaco diagnosed his penile discharge as prostititus and prescribed medication without ordering a urinalysis or other examination. As previously stated, Dr. Stage declared that it was his “opinion that Mr. Dawson’s treating physicians complied with the standard of medical care in the care and treatment of Dawson, who suffered from chronic internal and external hemorrhoids.” In Dr. Stage’s opinion, Dawson’s complaint of penile discharge, blood loss, and dizziness was not related to his hemorrhoids and Dawson’s medical records show that Dawson obtained prescriptions and had examinations and laboratory work done in addition to receiving continuing treatment for his chronic hemorrhoids. As the trial court found, Dawson submitted no expert declaration stating that Dr. Sinnaco’s diagnosis and treatment of Dawson did not meet the standard of care and Dawson is unqualified to make that determination. Accordingly, the trial court properly granted Dr. Sinnaco’s motion for summary judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 849; Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 934-935.)
Dr. Krishna and medical appeal analyst Brager were not part of the medical team that treated Dawson. Brager responded on April 17, 2003, to Dawson’s second inmate appeal, telling Dawson that he was scheduled to see a specialist. In December 2003, Brager assured Dawson that the ordered medical procedures would be carried out. Dr. Krishna responded on September 5, 2003, to Dawson’s third appeal, telling Dawson that he had chronic hemorrhoids and needed to continue his prescribed regimen. Dr. Krishna also ordered blood tests that were performed. Dawson alleges in his sixth and eighth causes of action that these defendants failed or refused to schedule him to see a specialist. Dr. Robertson, the specialist, saw Brager on October 6, 2003. In ruling on the defendants’ motion for summary judgment, the trial court found that Dawson’s evidence regarding Dr. Krishna failed to raise a triable issue of fact as to negligence, and that Brager could not be held liable in a suit for damages, citing Wright v. State of California (2004) 122 Cal.App.4th 659 (Wright). In its previous ruling on defendants’ motion for judgment on the pleadings, the court found that Wright did not preclude Dawson’s cause of action against Brager, and that Dr. Krishna was not entitled to discretionary immunity under Government Code section 820.2 for decisions regarding medical treatment, citing Barner v. Leeds (2000) 24 Cal.4th 676.
Nothing prevents a court from denying a motion for judgment on the pleadings and later granting a motion for summary judgment. A motion for judgment on the pleadings functions like a demurrer in that it is an attack on the face of the pleadings. (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 900.) The trial court must accept the facts alleged by the plaintiff as true. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.) In a summary judgment motion, the court considers the evidence outside of the pleadings submitted by the parties and determines whether there is a triable issue of material fact that requires the action to be tried. (§ 437c, subds. (b) & (c).) A court’s rulings on a motion for judgment on the pleadings and on a motion for summary judgment are often different because of the procedural differences between the two proceedings.
Dawson alleges in his tenth cause of action that DeLuna breached his professional duty to Dawson “by failing to schedule the potentially vital examination to locate the source of [his] blood loss and thereby provide the plaintiff with curative treatment.” However, Dr. Stage stated in his declaration that the EGD examination that DeLuna allegedly failed to schedule as early as the third week of October 2003, was performed on January 2, 2004, and the results were essentially normal. As the EGD examination did not locate the source of Dawson’s alleged continuing blood loss, any delay in the scheduling of the examination could not have harmed Dawson, as the trial court found in its ruling on the motion for summary judgment. No triable issue of fact remained.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mcadams, J. duffy, J.