Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Super. Ct. No. BP 086984, Aviva K. Bobb, Judge.
William Salzwedel for Petitioner and Appellant.
Rodi, Pollock, Pettker, Galbraith & Cahill, Rodi, Pollock, Pettker Christian & Pramov, Thomas Curtiss, Jr., Patrick J. Cain and Jean M. Beasley for Objector and Respondent.
ROTHSCHILD, JUDGE.
Petitioner Letantia Bussell (Bussell) appeals from the trial court’s summary judgment in favor of William Swearinger (Swearinger), and from orders granting Swearinger letters testamentary and appointing him executor of the will of Georgine Darcy (Darcy), in litigation involving multiple wills Darcy signed shortly before her death. The trial court found that Bussell raised no triable issues of fact in opposition to Swearinger’s summary judgment motion. Bussell contends that she did. We agree with Bussell, and reverse.
BACKGROUND
In February 2003, Darcy, a former Hollywood actress, signed a will prepared by her longtime attorney, Swearinger. On August 21, 2003, Darcy executed a will drafted by Gerard Soussan (Soussan), a different attorney. On November 20, 2003, Darcy executed another will prepared by Soussan. By June 2004, Darcy, suffering from aggressive brain cancer along with various other serious health problems, was receiving chemotherapy and other medications. On June 10, 2004, Darcy executed yet another will prepared and attested by Soussan. On or about June 11, 2004, Darcy called Swearinger, asked him to draw up a new will for her, and discussed testamentary provisions with him by telephone over the following days. Around that time, Swearinger received a copy of the June 10 will. On June 21, 2004, Darcy executed a will that Swearinger prepared, which expressly revoked the June 10 will. On June 23, 2004, Darcy executed yet another will prepared by Swearinger that expressly revoked all prior wills and codicils. Darcy died on July 18, 2004.
The three wills that Soussan prepared all included very generous bequests of money and real and personal property to Bussell, Darcy’s dermatologist and personal friend for two decades, and to Bussell’s three children. The June 21, 2004 will that Swearinger prepared included no gifts to Bussell or her children. The June 23, 2004 will provided for separate bequests of $25,000 to Bussell and to each of her children. Although the Soussan wills all left the residue of Darcy’s estate to Bussell, the Swearinger wills of June 21 and June 23, 2004 left the residue of the estate to various animal-related charities.
The September 2003 and November 2003 wills left Darcy’s apartment in France and all her jewelry, vehicles, paintings, and personal belongings to Bussell if she survived Darcy by at least 90 days, and to Bussell’s children if not, plus $100,000 to each of Bussell’s three children from the sale of Darcy’s stock and other real estate. The June 10, 2004 will included identical terms, except Darcy left the apartment in France to Bussell’s three children provided that they survived Darcy by at least 90 days, otherwise to Bussell. A sketchy handwritten holographic will dated June 6, 2004 also showed an intent to leave real property to Bussell and her children.
The June 21 will left the majority of Darcy’s estate in equal shares to Best Friends Animal Sanctuary, Dogs for the Deaf Inc., and Guiding Eyes For The Blind; the June 23 will gave equal shares to those three charities along with Helping Hands.
Swearinger petitioned for probate of the June 23 will on July 22, 2004. On August 31, 2004, Bussell contested the June 23 will on grounds of lack of testamentary capacity and intent, undue influence, fraud, mistake, duress, menace, and forged signature. Swearinger moved for summary judgment on March 22, 2005, contending that Bussell failed to demonstrate triable issues of fact as to any of her grounds for the will contest. In an attached declaration, Swearinger stated that he had specifically pointed out to Darcy that the June 10, 2004 will prepared by Soussan included bequests to Bussell and her children, but the June 21, 2004 will that he had prepared did not. Swearinger declared that on June 21, 2004, “Ms. Darcy told me that she did not wish to make any bequests to any of the four Bussells.” On June 23, 2004, however, Darcy instructed Swearinger to leave $25,000 to each of the Bussells. Swearinger stated that he had Darcy review copies of each of the wills he prepared in June 2004, and that “[a]t all times leading up to and including the execution of both the June 21, 2004 will and the June 23, 2004 will, Ms. Darcy appeared fully aware of the extent and nature of her property,” appeared to intend to dispose of it as the two wills provided, had no difficulty in expressing her wishes to Swearinger, and did not appear confused. Swearinger personally witnessed Darcy’s signature of both wills.
On May 25, Bussell filed an opposition to Swearinger’s motion for summary judgment, including declarations from Bussell and her attorney stating that additional depositions would produce evidence to show that Darcy intended to leave much of her estate to the Bussells and that she lacked testamentary capacity at the times she executed the June 21 and June 23 wills. In a reply memorandum, Swearinger contended that Bussell had failed to cite any competent evidence or to justify her request for a continuance to conduct additional discovery. He also maintained that additional discovery would be futile because two doctors, an oncologist and a neurologist, who had examined Darcy on June 21 and 23, 2004, had found her entirely competent on both days and had said so in depositions.
On June 6, 2005, Bussell filed a motion requesting a continuance to permit her to submit an expert’s declaration in opposition to summary judgment. The motion stated that on January 26, 2005, Bussell received certified copies of all of Darcy’s medical records from Cedars Sinai Medical Center except photocopies of films and x-rays from her file, but that Bussell’s expert, Dr. Martin Krell, wished to review the films and x-rays to check his preliminary opinion that Darcy’s multiple brain tumors, strokes and seizures had rendered her incapable of rational decisions and thus lacking in testamentary capacity on June 21 and 23, 2004. The trial court continued the summary judgment hearing to June 27, 2005 to allow Dr. Krell to examine Darcy’s MRI records and prepare a declaration in opposition to summary judgment. The court ordered that Dr. Krell’s declaration be filed by June 17, 2005, which Bussell did.
In his declaration, Dr. Krell stated that he was a California-licensed medical doctor and board-certified neurosurgeon who had practiced neurology and neurosurgery for 32 years. He noted that he had “reviewed the medical records of Georgine Darcy’s hospitalization at Cedars Sinai Medical Center from June 21, 2004 to July 16, 2004,” and also had “reviewed MRI brain scans” of June 1, 12, 22, and 26, 2004, as well as “CT Scans” of June 25 and 29, 2004. The June 12 scan, the June 22 “neuro-radiology report,” and subsequent scans showed that Darcy had “multiple and progressive embolic and metastatic lesions throughout her brain, particularly involving her frontal lobes.” Dr. Krell found that Darcy was “also under the influences of multiple medications related to a recent seizure condition, including chemotherapy and radiation treatment to her brain, in addition to cerebral metastatic disease and evidence for cerebral vascular strokes or hemorrhage. . . . Brain scan evidence of the patient shows that she sustained a cerebellar hemorrhage on or about June 19, 2004. Furthermore, the medicines that Georgine Darcy was taking commonly affect the patient’s ability to think clearly.”
Based on his “review of the brain scans and medical records,” Dr. Krell opined that on June 21 and 23, 2004, Darcy “suffered from significant deficits in her mental functions that made her unable to completely: understand the nature of making a will, understand and recollect the nature and situation of her property, and understand her relationships to those whose interests were affected by the wills” signed on those dates. These significant deficits, Dr. Krell found, affected Darcy’s memory, her recognition of familiar objects and persons, and her ability to concentrate, communicate, think logically, plan or organize, understand quantities, or control her emotions. He noted, “It is recognized as an established medical fact that afflictions or lesions involving the frontal lobes of the brain can significantly impair an individual’s capacity for rational judgment,” and that the “locations of . . . Darcy’s brain tumors on June 21, 2004 and June 23, 2004 were in the frontal lobes, the area of the brain controlling judgment and rational decision-making ability.” He further observed that the deficits in mental function that he described were “directly correlated with the making of a will” because they “significantly impaired . . . Darcy’s ability to make informed and rational mental decisions.”
Dr. Krell concluded, “In my professional opinion, on June 21 and 23, 2004, the above mentioned deficits in . . . Darcy’s mental functions made her unable to understand and appreciate all the consequences associated with her executing a new will. [¶]. . . [¶] For the above reasons . . . Darcy was susceptible to making a serious mistake concerning review, acceptance, and execution of wills on June 21, 2004 and June 23, 2004.”
At the hearing on the motion, over Swearinger’s objection, the court admitted Dr. Krell’s declaration but found it inadequate to raise a triable issue of material fact and granted the motion for summary judgment. The minute order stated that the court continued the hearing “only for the purpose of Dr. Krell reviewing the MRI records,” but that Bussell provided no reason for failing to procure “a timely declaration from Dr. Krell regarding other records that Dr. Krell presumably already had access to.Second, Dr. Krell’s declaration is vague at best; he fails to identify any specific records to support his conclusion that decedent lacked testamentary capacity on June 21, 2004 and June 23, 2004. Further, he fails to identify which medications decedent was taking that would ‘commonly affect the patient’s ability to think clearly.’” The court also faulted Dr. Krell for not addressing the deposition testimony of the oncologist and neurologist who had examined Darcy on the dates in question and found her fully competent. As to Bussell’s separate statement of disputed facts filed before her motion for a continuance, the court stated that it failed to comply with Code of Civil Procedure section 437c, subdivision (b)(3), and that such failure constituted grounds for granting the motion for summary judgment.
The judgment states, “Dr. Krell’s declaration is untimely in that no excuse is offered for not submitting with Dr. Bussell’s original opposition a declaration of Dr. Krell discussing the then-available medical evidence to which Dr. Krell presumably had access[,]” but nonetheless the court considered the declaration.
Regarding Bussell’s inadequate separate statement, the court stated at the summary judgment hearing, “The failure to comply with this requirement of a separate statement itself may constitute a sufficient ground for granting the motion.” The judgment states, “This failure is sufficient ground on its own for granting the motion.”
Bussell timely appealed the trial court’s grant of summary judgment, as well as its later orders appointing Swearinger as executor of Darcy’s estate and granting him letters testamentary to administer the estate.
The record on appeal shows extensive additional litigation regarding letters testamentary, the trial court’s order appointing Swearinger executor of Darcy’s will, and Bussell’s motion for a new trial, which the trial court denied.
DISCUSSION
Among numerous other contentions, Bussell maintains that Dr. Krell’s declaration provided sufficient evidence to demonstrate a triable issue of material fact and defeat summary judgment. We agree.
Swearinger maintains that Bussell’s inadequate separate statement of disputed facts was a sufficient ground in itself to support the trial court’s grant of summary judgment. Even assuming that the trial court granted the motion, in part, based on the inadequate separate statement, however, for the trial court to have made its determination based on the insufficient separate statement without giving Bussell an opportunity to correct its flaws would have constituted an abuse of discretion, and we cannot affirm on that ground. (See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210-1216.)
As we have previously described summary judgment procedure: “‘“A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party 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’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. . . . In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. . . . We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. . . . In making this determination, the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” . . . In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.’” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 603-604 (Hanson).) The court must view all evidence and inferences “‘in the light most favorable to the opposing party.’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Powell).) A court must “resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Id. at p. 126; see also Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)
By their nature, cases involving medical questions frequently involve expert opinions regarding those medical questions. (See, e.g., Powell, supra, 151 Cal.App.4th 112; Hanson, supra, 76 Cal.App.4th 601; Kelley v. Trunk (1998) 66 Cal.App.4th 519.) A person who qualifies as an expert may give testimony in the form of an opinion if the subject matter of that opinion is sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a); Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116 (Jennings).) “[Q]ualified medical experts may, with a proper foundation, testify on matters involving causation when the causal issue is sufficiently beyond the realm of common experience.” (Id. at p. 1117.) An expert opinion without evidentiary support or reasoned explanation or based only on speculation or conjecture, however, has no evidentiary value. (Ibid.) “‘Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.’” (Powell, supra, 151 Cal.App.4th at p. 123.)
In his declaration, Dr. Krell sufficiently established his qualifications as an expert on neurological conditions and his ability to determine the significance of Darcy’s various brain scans. He stated that she had cancerous growths throughout her brain, especially in her frontal lobes; that the frontal lobes control judgment and rational decision-making; that the ability of lesions or afflictions of the frontal lobes to significantly impair an individual’s capacity for rational judgment is an established medical fact; and that his review of the brain scans and medical records led him to conclude that Darcy was suffering from significant deficits in her mental function that diminished her rational and testamentary capacities. These various statements support a rational inference that in Dr. Krell’s expert opinion, any patient with the extent of damage to the frontal lobes that Darcy’s brain scans revealed necessarily lacked testamentary capacity. The various brain scans form a sufficient foundation for this inference in themselves, but Dr. Krell also referred generally to Darcy’s other medical records, pointed out that Darcy was on multiple medications for various serious conditions, and stated that the medicines she was taking “commonly affect the patient’s ability to think clearly.”
Although Swearinger asserts that Dr. Krell’s declaration is purely conclusory, speculative, and conjectural, we disagree. As we observed in an earlier case regarding the opponent’s burden in the summary judgment context, an expert’s declaration need not “set forth in excruciating detail the factual basis for the opinions stated therein.” (Hanson, supra, 76 Cal.App.4th at p. 608, fn. 6.) Dr. Krell was not obliged, in his declaration, to offer a comprehensive treatise on either the effects of frontal lobe lesions or the side effects of medications used for chemotherapy or for treating seizures, cerebral metastatic disease, or acute vascular strokes or hemorrhage. Construing Dr. Krell’s declaration liberally, as we must, and accepting all reasonable inferences therefrom as true, we find that his declaration supports a reasonable inference that Darcy lacked testamentary capacity on June 21 and 23, 2004.
The authorities Swearinger cites do not aid him. In Jennings, the plaintiff’s expert failed to explain the complicated chain of causation by which a medical device left inside a surgery patient’s peritoneal cavity could have caused infection outside the peritoneal cavity, even though no clinical symptoms indicated that the device caused any infection inside that cavity. (Jennings, supra, 114 Cal.App.4th at pp. 1114-1115, 1120.) The Jennings court observed that the expert “substituted a conclusion in place of an explanation, opining ‘[i]t just sort of makes sense. We have that [device] and it’s contaminated, [the patient is] infected.’ That opinion is too conclusory to support a jury verdict on causation.” (Id. at p. 1120.) Here, by contrast, there is no such complex chain of causation to explain, and Dr. Krell sufficiently explained the basis for his opinion that Darcy lacked testamentary capacity: injury or affliction to the frontal lobes impairs rational thought, the brain scans showed that Darcy’s frontal lobes were extensively afflicted with cancer, and, by reasonable inference, he found the affliction was so extensive that Darcy necessarily lacked testamentary capacity. Unlike the expert’s opinion in Jennings, Dr. Krell’s opinion is not “purely conclusory because unaccompanied by a reasoned explanation concerning the factual predicates to the ultimate conclusion.” (Id. at p. 1117.)
In Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, the summary judgment opponent’s expert insisted that a car’s brakes failed because the car had lost its brake fluid through the movant’s failure to properly tighten the bleeder screws in the car’s brake system, which allowed the brake fluid to leak out. (Id. at p. 1413.) This expert had not seen the car or, apparently, any pictures of its brake system. The trial court and appellate court both found this expert’s opinion insufficient to defeat summary judgment on the issue of causation where the only available evidence, which was uncontradicted and came from a mechanic who inspected the car after the crash and from the driver’s testimony on the car’s performance before the crash, showed that the bleeder screws had been properly tightened and no leakage had occurred. (Id. at pp. 1412, 1415-1416.) Both courts faulted the opponent’s expert for failing to address the directly contradictory evidence, concluding that his opinion did “not even rise to the level of speculation or conjecture.” (Id. at p. 1415.) This case, however, lacks the sort of clear factual evidence that was available in Nardizzi. Darcy’s doctors stated their opinions that Darcy appeared mentally alert and capable on June 21 and 23, 2004. After reviewing Darcy’s medical records, Dr. Krell opined, by reasonable inference, that he did not agree with the other doctors’ conclusions regarding her mental state.
Because we find that Dr. Krell’s opinion based upon Darcy’s brain scans raised a triable issue of material fact in the case sufficient to defeat summary judgment, we need not address the parties’ myriad other arguments.
We note that the trial court faulted Bussell for not producing a timely declaration from Dr. Krell as to Darcy’s other medical records besides the brain scans, which were available to Bussell months earlier; for not identifying the specific medications Darcy was taking that affect a patient’s ability to think clearly; for not identifying specific records to support his conclusion that Darcy lacked testamentary capacity on June 21, and June 23, 2004; and for not addressing the testimony of Darcy’s neurologist and oncologist that she seemed fine to them. The last point we have addressed already. As to the others, we note that Dr. Krell specifically identified the June 12 and June 22, 2004 brain scans to support his conclusions; that it is entirely plausible that given the nature of his expertise, Dr. Krell might have been unwilling or unable to give a medical opinion on the other medical records without the brain scans, which are the primary basis for his opinion; and that Dr. Krell’s comment regarding Darcy’s medications, though significant, is not necessary for his declaration to show a triable issue of fact regarding Darcy’s testamentary capacity.
DISPOSITION
The judgment is reversed, and the orders appointing Swearinger executor of Darcy’s estate and granting him letters testamentary are vacated with directions to reconsider those orders in light of our reversal of the judgment. Each party shall bear its costs on appeal.
We concur: MALLANO, Acting P.J., VOGEL J.