Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County, No. 30-2009-00123764 Kirk H. Nakamura, Judge. Judgment for Defendants and Respondents Robert B. Ash, M.D., and Valley Radiotherapy Associates affirmed; Judgment for Defendant and Respondent St. Joseph Hospital of Orange reversed.
Milton Bieber, in pro. per., for Plaintiff and Appellant.
Beam, Brobeck, West, Borges & Rosa, Curtis C. Holmes II and Glen A. Stebens for Defendant and Respondent St. Joseph Hospital of Orange.
Creason & Aarvig, Larry A. Dunlap and James A. Creason for Defendants and Respondents Robert B. Ash, M.D., and Valley Radiotherapy Associates.
OPINION
FYBEL, J.
INTRODUCTION
Milton Bieber sued Robert B. Ash, M.D., Valley Radiotherapy Associates, and St. Joseph Hospital of Orange (St. Joseph) for medical malpractice resulting from radiation treatment Bieber received for prostate cancer. (Dr. Ash and Valley Radiotherapy Associates will be referred to herein as Ash.) Ash and St. Joseph filed separate motions for summary judgment; the trial court granted both motions, and Bieber appeals.
We conclude the trial court did not err in granting Ash’s motion for summary judgment. Ash submitted competent expert testimony that the care and treatment provided by Ash met the requisite standard of care, and that there was no causal connection between the care provided and the injuries allegedly suffered by Bieber. Bieber failed to offer admissible evidence raising a triable issue of material fact. He failed to show either that a continuance of the summary judgment motion was mandated by Code of Civil Procedure section 437c, subdivision (h), or that good cause existed for a discretionary continuance. (All further statutory references are to the Code of Civil Procedure.)
However, the trial court erred in granting St. Joseph’s motion for summary judgment. St. Joseph offered expert testimony that it met the requisite standard of care in the treatment provided to Bieber while he was a surgical patient at St. Joseph in October 2007. The operative complaint, however, alleged St. Joseph committed medical malpractice in the care and treatment provided to Bieber while he was undergoing radiation treatment between April and June 2008, not in the care and treatment provided in October 2007. Therefore, St. Joseph did not make a prima facie showing that an element of Bieber’s claim could not be established.
Bieber also argues the trial court erred by denying his motion for leave to file a second amended complaint. The trial court did not err, because the motion failed to comply with the California Rules of Court and the Code of Civil Procedure.
Finally, Bieber argues the trial court erred by awarding sanctions against him on a discovery matter. Bieber failed to include in the appellate record the order from which he appeals, or any documents underlying it. There is not a sufficient record on which to consider Bieber’s appeal on this issue.
Statement of Facts and Procedural History
Bieber was diagnosed with prostate cancer in August 2007, and underwent a prostatectomy at St. Joseph on October 22, 2007. On April 10, 2008, Bieber began undergoing radiation treatment at St. Joseph, under Ash’s care. Bieber claims he suffered physical damage as a result of the radiation treatment.
Bieber sued St. Joseph and Ash on May 28, 2009, for medical malpractice. An amended complaint was filed on November 9, 2009. (Although this was the first amendment to the complaint, it is labeled “(Second) Amended Complaint For: Personal Injuries and Medical Malpractice.”)
Ash filed a motion for summary judgment on December 3, 2009; a hearing on the motion was scheduled for March 4, 2010. St. Joseph filed its own motion for summary judgment on January 5, 2010; the hearing date for St. Joseph’s motion was March 18, 2010.
Bieber filed a request for continuance on January 11, 2010, in which he stated, in relevant part: “Plaintiff will answer both Summary Judgement [motions] on March 18.” No hearing date on the request for continuance was noticed, and no ex parte application was filed. The request did not propose a new hearing date for either motion for summary judgment.
On February 23, 2010, Bieber filed a motion for leave to file a second amended complaint.
On February 26, Bieber filed a request for continuance of Ash’s motion for summary judgment. Again, no hearing date was noticed and no ex parte application was filed. Bieber did not request a new hearing date for Ash’s motion for summary judgment. The second request for continuance specifically confirmed that Bieber “can answer [the] Hospital[’s] summary judgement set for March 18, 2010.”
On March 4, 2010, after a hearing, the trial court denied Bieber’s motion for leave to file a second amended complaint, denied the request for continuance of the summary judgment motion, and granted Ash’s motion for summary judgment. Judgment in favor of Ash and against Bieber was entered March 18, 2010.
St. Joseph’s motion for summary judgment was heard on March 18, 2010; the trial court granted the motion, and judgment was entered.
Bieber timely appealed from both judgments.
DISCUSSION
I.
The trial court did not err in granting Ash’s motion for summary judgment, but did err in granting St. Joseph’s motion.
A.
Standard of Review
We review orders granting motions for summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767]; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) Summary judgment “provide[s] courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844.) A motion for summary judgment is properly granted if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
B.
Ash’s Motion for Summary Judgment
In his motion for summary judgment, Ash offered admissible evidence, through the declaration of an expert witness, that the care and treatment provided by Ash to Bieber was “entirely appropriate and satisfied the requisite standard of care, ” and that, to a reasonable degree of medical probability, there was no causal connection between the care and treatment provided by Ash and any alleged injuries suffered by Bieber. Therefore, the burden shifted to Bieber to offer admissible evidence establishing the existence of a triable issue of material facts regarding a breach of the standard of care and regarding causation. (§ 437c, subd. (p)(2).) Bieber, however, did not file any opposition to the motion for summary judgment, and specifically did not file a separate statement responding to Ash’s separate statement of undisputed material facts. The trial court could have granted the motion for summary judgment on that ground alone. (§ 437c, subd. (b)(3).)
“For purposes of motions for summary judgment and summary adjudication: [¶]... [¶]... A defendant... has met his or her 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, even if not separately pleaded, 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 exists as to that cause of action or a defense thereto. The plaintiff... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2).)
“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (§ 437c, subd. (b)(3).)
Because Ash submitted a declaration containing a competent expert opinion showing the lack of a triable issue of material fact, Bieber was required to produce competent expert testimony to the contrary in order to avoid summary judgment. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487 1488.) Bieber failed to do so.
Bieber does not address the merits of Ash’s summary judgment motion in his appellate briefs. The failure to address an issue on appeal forfeits any contention of error. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177.)
C.
St. Joseph’s Motion for Summary Judgment
In support of its motion for summary judgment, St. Joseph offered the declaration of its expert witness on the standard of care of nurses, as well as Bieber’s hospital records which were authenticated by St. Joseph’s custodian of records. Through the expert witness’s declaration, St. Joseph offered admissible evidence that the care and treatment rendered to Bieber by the St. Joseph nursing staff complied with the applicable standard of care, and that, to a reasonable degree of medical probability, no act or omission by the St. Joseph nursing staff caused Bieber’s alleged injuries.
In response to the motion for summary judgment, Bieber filed an opposition brief, but did not file a responsive separate statement. The gist of Bieber’s opposition is that he was in perfectly good health after his surgery, and it was only the radiation treatment that caused his injuries. Bieber therefore argued that the summary judgment motion failed to shift the burden to him, because it failed to disprove an element of Bieber’s cause of action against St. Joseph.
The opposition brief was filed late, on March 12, 2010. Because the hearing was scheduled for March 18, the opposition papers were required to be filed and served by March 4. (§ 437c, subd. (b)(2).)
Bieber is correct. The complaint alleges that St. Joseph was negligent in providing care to Bieber from April 10, 2008 through June 2008, in connection with the provision of radiation therapy and care. The only evidence offered in support of St. Joseph’s motion was the declaration of an expert in the field of nursing, who “render[ed] an opinion concerning the nursing standard of care rendered to Milton Bieber while he was treated at St. Joseph Hospital of Orange... on an inpatient basis from October 22, 2007 through October 26, 2007.” The motion for summary judgment failed to address the care provided by St. Joseph to Bieber during the period mentioned in the complaint, and St. Joseph did not make a prima facie showing that an element of the cause of action could not be established. (§ 437c, subd. (p)(2).) Therefore, the burden never shifted to Bieber to show the existence of a triable issue of material fact. (Ibid.) The rule that a trial court has discretion to grant a motion for summary judgment based solely on the absence of a responsive separate statement (§ 437c, subd. (b)(3)) is inapplicable when the moving party fails to make the required prima facie showing. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086 [“unless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party’s failure to file a proper separate statement”].)
At oral argument on appeal, St. Joseph’s counsel stated that the operative complaint alleged St. Joseph committed medical malpractice only during Bieber’s period of hospitalization in October 2007. This is an inaccurate reading of the appellate record.
St. Joseph argues that if the trial court had considered the proposed second amended complaint, rather than the operative amended complaint, in ruling on the motion for summary judgment, it could have granted the motion based on respondeat superior. In the proposed second amended complaint, Bieber alleged that an ostensible agency relationship existed between St. Joseph and Ash, and that St. Joseph was vicariously liable for Ash’s negligence. Because Ash’s motion for summary judgment was granted, St. Joseph argues, it could not be liable for Ash’s negligence because Ash was not negligent. This argument fails for two reasons. First, the proposed second amended complaint was not before the trial court, as the motion for leave to amend was denied. Second, the respondeat superior argument cannot be considered because it is raised for the first time on appeal. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) An appellate court may affirm the grant of summary judgment on any correct legal theory only if that theory was presented in the trial court. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)
The trial court erred in granting St. Joseph’s motion for summary judgment. We express no opinion as to the merits of Bieber’s claim, especially in light of the fact that Ash’s summary judgment motion was properly granted.
II.
The trial court did not err in denying the requests for continuance of Ash’s summary judgment motion.
A.
A continuance was not required under section 437c, subdivision (h).
When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance. (Bahl v. Bank of America (2001)89 Cal.App.4th 389, 395.) “Section 437c, subdivision (h) of the Code of Civil Procedure provides that a motion for summary judgment or adjudication shall be denied, or a continuance shall be granted, ‘[i]f it appears from the affidavits submitted in opposition... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented....’ The nonmoving party seeking a continuance ‘must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.]” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) In the first request for continuance, Bieber did not meet the statutory requirements for a mandatory continuance because he did not identify any facts he sought to obtain that were necessary to oppose the motion, and did not explain why he believed such facts existed or why additional time was needed to obtain them. The second request for continuance states that a continuance of Ash’s summary judgment motion is necessary because Bieber needs “the agreement between Hospital and defendant ASH, ” which had been requested through a civil subpoena. The request for continuance, however, does not explain what facts would be obtained from the agreement. A continuance was not mandated under section 437c, subdivision (h).
B.
Bieber did not establish good cause for a discretionary continuance.
“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion. [Citations.]” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
We conclude the trial court acted within its discretion in denying Bieber’s requests for a continuance. Bieber never actually requested that the hearing dates be continued, but asked only that he be permitted to file his written responses to the summary judgment motion on the day of the hearing.
In his opening brief on appeal, Bieber implies that the trial court erred by failing to act on his requests for a continuance. The requests for continuance do not notice a hearing, or otherwise include any information that would have caused the trial court to act on them.
Bieber’s only real argument is that as a self represented litigant he was unable to complete the opposition to the summary judgment in a timely fashion. The trial court found that Bieber had failed to provide sufficient reasons for a continuance. The court’s finding was supported by the evidence; we find no abuse of discretion in its denial of Bieber’s requests for a continuance.
III.
The trial court did not err in denying Bieber’s motion for leave to file a second amended complaint.
We review the trial court’s denial of Bieber’s request to file a second amended complaint for abuse of discretion. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)
After Bieber filed his first amended complaint in November 2009, Ash answered, while St. Joseph demurred. On January 14, 2010, St. Joseph’s demurrer was sustained with 30 days leave to amend. Bieber attempted to file a second amended complaint on February 22, 2010, but that filing was rejected because it was late. On February 23, Bieber filed a motion for leave to file the second amended complaint. Bieber explained in his motion that he miscalculated the date on which the second amended complaint was due to be filed.
Because it had already filed its motion for summary judgment, St. Joseph answered the first amended complaint on February 1, 2010.
The trial court denied Bieber’s motion: “There are multiple problems with this motion. [¶] First of all, it was not served until February 22, 2010, and the last day to timely serve the motion by mail was January 31, 2010. The motion was actually served three days after the opposition to the motion was due. [¶] Secondly, at the January 14, 2010 demurrer hearing the court gave plaintiff more than sufficient time (30 days) to file a Second Amended Complaint, and yet plaintiff failed to file within this 30 day period. Simply stating that plaintiff based the 30 days on January 28, 2010 instead of on January 14, 2010 does not tell the court why such a mistake could be considered to be excusable so as to entitle plaintiff to relief under [section] 473(b). [¶] Third, there are no points and authorities submitted with the motion as required pursuant to [California Rules of Court, rule] 3.1113(a). In fact, on this ground alone the court may deny the motion. ‘The court may construe the absence of a memorandum as an admission that the motion... is not meritorious and cause for its denial....’ [California Rules of Court, rule] 3.1113(a). [¶] Fourth, the proposed Second Amended Complaint which plaintiff has attached to the motion is still based solely on medical malpractice, and plaintiff has not set forth any facts that show that the defendants breached the standard of care or caused any of the injuries which he claims to have suffered.” (Italics omitted.)
As the trial court noted in its minute order, the motion for leave to file an amended complaint was not timely served and filed, and did not meet the requirements of rule 3.1113(a) of the California Rules of Court. The court could have denied the motion for failure to follow the procedural rules. Bieber’s status as a self represented litigant does not entitle him to any extraordinary exemptions from the California Rules of Court or the Code of Civil Procedure. “[M]ere self representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.]... A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984 985.)
IV.
The appellate record is incomplete and does not permit us to determine whether the trial court erred in awarding sanctions against Bieber.
Bieber argues the trial court erred by awarding sanctions against him on a discovery matter. Bieber does not include in the appellate record the order awarding sanctions, and he fails to provide any information on what sanctions were awarded and why. There is not a sufficient record on which to consider Bieber’s appeal on this issue. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [appellant cannot demonstrate error in court’s granting of motion where appellate record fails to include the motion, any opposition, and the court’s order].)
DISPOSITION
The judgment in favor of Ash and against Bieber is affirmed. The judgment in favor of St. Joseph and against Bieber is reversed.
On the appeal from the judgment in favor of Ash, respondents to recover costs on appeal. On the appeal from the judgment in favor of St. Joseph, appellant to recover costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.