Opinion
E066128 E068673
10-15-2018
CRAYA C. CARON, Plaintiff and Appellant, v. CHRISTOPHER K. TINER et al., Defendants and Respondents. CRAYA C. CARON, Plaintiff and Appellant, v. ESTATE OF LONNIE W. TINER et al., Defendants and Respondents.
Craya C. Caron, in pro. per., for Plaintiff and Appellant. Neil, Dymott, Frank, McCabe & Hudson and Hugh A. McCabe for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1518292) (Super. Ct. No. CIVDS1518292) OPINION APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed. Craya C. Caron, in pro. per., for Plaintiff and Appellant. Neil, Dymott, Frank, McCabe & Hudson and Hugh A. McCabe for Defendants and Respondents.
I. INTRODUCTION
Plaintiff and appellant Craya C. Caron, representing herself in propria persona, contends that she was injured not only by negligent dental care, but also by the acts or omissions of the representative of the estate of her oral surgeon and the attorneys retained to defend Caron's malpractice lawsuit. The oral surgeon who treated Caron, Lonnie W. Tiner, DDS (Dr. Tiner), died before the filing of the lawsuit. Defendants and respondents include: (1) Dr. Tiner's former business, Lonnie W. Tiner, DDS, APC, doing business as Hi-Desert Oral & Maxillofacial Surgery Center (erroneously sued as Hi-Desert Oral & Maxillofacial Surgery Center) (Hi-Desert); (2) the Estate of Lonnie W. Tiner (the Estate); (3) The Lonnie Walter Tiner and Patricia Lucille Tiner 2008 Family Trust (erroneously sued as Lonnie W. & Patricia L. Tiner Family Revocable Trust) (Family Trust); (4) Christopher K. Tiner, both individually and in his capacities as representative of the Estate and successor trustee of the Family Trust (Christopher Tiner); (5) Hugh A. McCabe, Esq. (Mr. McCabe); and (6) Mr. McCabe's law firm, Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, APLC (as of July 10, 2018, Neil, Dymott, Frank, McCabe & Hudson) (Neil Dymott).
In this opinion, we address two appeals arising from Caron's lawsuit, which we have on our own motion consolidated for purposes of oral argument and decision. In case No. E066128, Caron challenges the trial court's order granting a Code of Civil Procedure section 425.16 special motion to strike, commonly referred to as an anti- SLAPP motion, and dismissing the causes of action for gross negligence and civil conspiracy she asserted against Christopher Tiner, Mr. McCabe, and Neil Dymott. She also contests the denial of her ex parte application to continue the hearing of the anti-SLAPP motion and lift the statutory stay on discovery that went into effect when the anti-SLAPP motion was filed. In appeal No. E068673, the immediately appealable order at issue is the trial court's grant of summary judgment against Caron on her remaining causes of action, for "Dental Malpractice During Wisdom Tooth Extraction" and "Failure to Obtain or Provide Informed Consent." In her briefing with respect to case No. E068673, Caron also includes arguments regarding several other orders by the trial court—denying her motion to compel, denying her motion to disqualify defendants' counsel, and granting attorney fees to defendants as prevailing parties on the anti-SLAPP motion—that she first identified in notices of appeal lodged in case No. E066128.
Further undesignated statutory references are to the Code of Civil Procedure.
We find no error on the part of the trial court. The anti-SLAPP motion and the motion for summary judgment were properly granted, and we find no error in the order denying Caron's motion to compel and imposing sanctions against her, or in the order denying her ex parte application to continue hearing of the anti-SLAPP motion and lift the stay on discovery. Caron forfeited her claims of error with respect to the order denying her motion to disqualify, as well as the order granting attorney fees to defendants, but even if not forfeited her arguments with respect to those motions would fail on their merits. We therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Operative Pleadings.
Caron initially brought suit on December 11, 2015. The complaint asserts two causes of action: (1) "Dental Malpractice During Wisdom Tooth Extraction," and (2) "Failure to Obtain or Provide Informed Consent." It names as defendants Dr. Tiner, Hi-Desert, the Estate, and the Family Trust. According to the complaint, Dr. Tiner extracted one of Caron's wisdom teeth on April 17, 2015. The complaint alleges that Dr. Tiner's treatment of Caron was negligent in several respects, resulting in a severed nerve that could only be repaired, if at all, by "micro-surgery," which she could not afford. She further alleges that Dr. Tiner failed to adequately warn her of the risks of complications such as those she has suffered. The complaint acknowledges that Dr. Tiner died in May 2015 and that Hi-Desert "was closed and vacated" shortly thereafter.
Caron's first amended complaint (FAC), filed March 22, 2016, adds Christopher Tiner, Mr. McCabe, and Neil Dymott as defendants. The FAC includes two new causes of action asserted against the newly-added defendants, for "Gross Negligence" and "Civil Conspiracy." Caron alleges that the additional medical treatment she required as a result of Dr. Tiner's malpractice had to be performed within six to 12 months after the injury to have any reasonable chance of success. The gravamen of the new causes of action is that Christopher Tiner, together with his legal counsel, negligently or intentionally delayed "providing her with information necessary for her to begin processing a claim against [the Estate] for medical/dental injuries." As a result, she alleges, she was unable to get the necessary treatment, and she has "suffered permanent fixation of her oral neurological and/or anatomical injury inflicted upon her by [Dr. Tiner]."
B. Defendants' Anti-SLAPP Motion, Appeal No. E066128.
On April 12, 2016, Christopher Tiner, Mr. McCabe, and Neil Dymott filed their anti-SLAPP motion, seeking an order striking the causes of action added by the FAC. On April 27, 2016, the trial court denied an ex parte application by Caron that sought a continuance of the hearing date for the anti-SLAPP motion to allow her "sufficient time" to file a noticed motion requesting leave to conduct prehearing discovery pursuant to section 425.16, subdivision (g). The trial court granted the anti-SLAPP motion on May 16, 2016. Caron filed a notice of appeal with respect to the trial court's grant of the anti-SLAPP motion on May 31, 2016.
In connection with her opposition to the anti-SLAPP motion, on May 6, 2016, Caron filed a document entitled "Plaintiff's Objection and Request for Admissions Concerning Lonnie W. Tiner Proof of Dental Malpractice Insurance and Hugh A. McCabe's OMSNIC Authorization of Representation." On May 26, 2016, Caron filed a "Motion to Compel Defendants' Further Answers to Request for Admissions," seeking to compel additional response to the May 6, 2016, document. At a hearing on June 28, 2016, the trial court denied Caron's motion to compel, finding it to be "utterly frivolous," and noting that it was "procedurally improper on numerous fronts." The trial court also imposed sanctions on Caron in the amount of $800 payable to Mr. McCabe, an amount less than half of that requested by defendants.
OMSNIC is the insurance company that retained Neil Dymott, Mr. McCabe's law firm, to defend Caron's lawsuit.
On June 1, 2016, Christopher Tiner filed a motion seeking attorney fees incurred in bringing the anti-SLAPP motion pursuant to section 425.16, subdivision (c). On July 12, 2016, the trial court granted the motion, awarding $7,840.
On July 26, 2016, Caron filed a second notice of appeal, giving notice of her appeal of the trial court's June 28, 2016, order denying her motion to compel and imposing sanctions against her, as well as the July 12, 2016, order granting Christopher Tiner's motion for attorney fees. Subsequently, however, this court dismissed without prejudice Caron's appeal of the June 28, 2016, order on the ground that it was not an appealable order.
On August 29, 2016, Caron filed a motion to disqualify Mr. McCabe and Neil Dymott as counsel for the defendants. On October 6, 2016, the trial court denied the motion. On November 7, 2016, Caron filed a third notice of appeal, giving notice of her appeal of the trial court's denial of her motion to disqualify.
Each of the three above-mentioned notices of appeal were lodged in this court under case No. E066128. Caron's opening brief in that appeal was initially filed on April 21, 2017, though a corrected version was filed on July 7, 2017, after the record was augmented on Caron's motion. The matter was fully briefed as of October 3, 2017, with the filing of Caron's reply brief. Caron's briefing in case No. E066128 primarily addresses the grant of the anti-SLAPP motion, mentioning only in passing that the award of attorney fees should be reversed if the grant of the anti-SLAPP motion is reversed. Caron also contests the denial of her ex parte request to continue hearing of the anti-SLAPP motion and lift the stay on discovery.
C. Defendants' Motion for Summary Judgment, Appeal No. E068673.
Meanwhile, on November 4, 2016, defendants filed a motion for summary judgment with respect to Caron's remaining causes of action relating to alleged dental malpractice. The motion for summary judgment was supported by, among other things, an expert declaration opining that Dr. Tiner did not negligently cause Caron's alleged injuries and damages and that Dr. Tiner complied with the applicable standard of care, including with respect to obtaining Caron's informed consent prior to treatment.
On January 30, 2017, at Caron's request, the trial court continued the hearing on the motion for summary judgment to give Caron an additional opportunity "to provide evidence regarding standard of care that raises a triable issue of fact from someone who is qualified to render that opinion." The only evidence Caron subsequently submitted, however, was her own declaration, entitled "Plaintiff's Declaration in Support of Expert Witness Equivalency and Alternatives—Necessary to Controvert Defendants' Expert Witness Declaration Supporting Defendants' Motion for Summary Judgment." The trial court denied Caron's ex parte application requesting that the court "appoint and pay for an Expert Witness if the Court deems it indispensably necessary to controvert the veracity of Defendants' Expert Witness." The trial court granted the motion for summary judgment on April 3, 2017. Judgment was entered on April 21, 2017.
Caron filed her fourth notice of appeal, identifying the ruling on the motion for summary judgment as the appealable order, on June 23, 2017. Because appeal No. E066128 was already partially briefed by that time, the new notice of appeal was docketed in this court as a separate appeal, case No. E068673, even though it arose from the same underlying matter.
On January 25, 2018, Caron requested that her time to serve and file her opening brief in appeal No. E068673 be extended "indefinitely," so that the matters raised by her four notices of appeal could be heard "in proper sequence." On February 1, 2018, we denied Caron's request for an indefinite extension of time and instead, on our own motion, ordered the appeals in case Nos. E066128 and E068673 to be consolidated for purposes of oral argument and decision. We also granted Caron a limited extension of time to file her opening brief in case No. E068673.
In Caron's opening brief in case No. E068673, she asserts claims of error with respect to four trial court orders: (1) the June 28, 2016, order denying her motion to compel and imposing sanctions against her; (2) the July 12, 2016, order granting attorney fees to defendants pursuant to section 425.16, subdivision (c); (3) the October 6, 2016, order denying her motion to disqualify; and (4) the April 3, 2017, order granting defendants' motion for summary judgment. In their respondents' brief, defendants take the position that the only order at issue in case No. E068673 is the one granting their motion for summary judgment, and they address only Caron's arguments with respect to that order.
III. DISCUSSION
A. Forfeiture.
Before turning to the merits of Caron's claims of error, we first consider which of them she presented properly for our review. Failure to raise an issue in the opening brief ordinarily forfeits that issue on appeal. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12 [declining to address issue not properly raised in appellant's opening brief]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 ["[c]ourts will ordinarily treat the appellant's failure to raise an issue in his or her opening brief as a waiver of that challenge"]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [issues not properly raised in appellant's brief are deemed forfeited or abandoned]; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 (Christoff) ["an appellant's failure to discuss an issue in its opening brief forfeits the issue on appeal"].)
Caron's claims of error with respect to the denial of her motion to disqualify and the grant of attorney fees to defendants pursuant to section 425.16, subdivision (c), could have been and should have been raised in her opening brief in case No. E066128. The notices of appeal with respect to those orders were docketed under that appellate case number, and the relevant documents and reporter's transcripts were included in the record on appeal filed under that appellate case number. Case No. E066128 was fully briefed before we consolidated it with case No. E068673 for purposes of oral argument and decision. Caron did not ever request, and we did not ever grant, leave to file additional or supplemental briefing with respect to case No. E066128. By failing to raise any arguments she had regarding the denial of her motion to disqualify and the grant of attorney fees to defendants at the first opportunity, in her opening brief in case No. E066128, Caron forfeited those challenges. (See Chrisotff v. Union Pacific Railroad Co., supra, 134 Cal.App.4th at p. 125.)
Caron's challenge to the June 28, 2016, order denying her motion to compel and imposing sanctions requires a different analysis. In case No. E066128, we dismissed Caron's appeal of that order without prejudice on the ground that it was not an appealable order. Caron subsequently appealed the trial court's order denying her motion to disqualify opposing counsel, and that order, too, was made part of case No. E066128. But the motion to compel was "substantively and/or procedurally collateral to, and not directly related to," the motion to disqualify, so the motion to compel was not reviewable in conjunction with the motion to disqualify pursuant to section 906. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 948-949.) Rather, Caron's first and only opportunity to brief her challenges to the trial court's June 28, 2016, order was in her appeal from the trial court's grant of the defendants' summary judgment motion and subsequent entry of a final judgment in case No. E068673. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1060 [noting that "generally discovery rulings are not directly appealable and are subject to review only after entry of a final judgment"].) Caron therefore did not forfeit her challenge to the June 28, 2016, order, and it was appropriate for her to raise her arguments with respect to that order in her briefing in case No. E068673.
Even though Caron forfeited several of her claims of error, we will briefly address the merits of her forfeited challenges. In short, Caron's forfeited claims of error would have failed on their merits, even if they had been properly presented for review.
As discussed below, defendants' anti-SLAPP motion was correctly granted. (See section III (B), post.) Christopher Tiner was "entitled to recover his . . . attorney's fees and costs" based on his status as a defendant represented by counsel who prevailed on an anti-SLAPP motion. (§ 425.16, subd. (c).) The circumstance that Christopher Tiner's counsel was also a defendant and party to the anti-SLAPP motion does not bar the award of attorney fees pursuant to section 425.16, subdivision (c). (See Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 525 [affirming award of attorney fees under anti-SLAPP statute to prevailing nonattorney defendants, even though their attorney was a codefendant].) Our review of the record reveals no support for Caron's suggestion that the trial court's ruling may have been a product of bias against her.
Caron's challenge to the denial of her motion to disqualify is also without merit. There is no evidence in the record that Caron ever had an attorney-client relationship with Mr. McCabe or Neil Dymott, or any other form of confidential or fiduciary relationship that might give rise to a conflict of interest that could justify disqualification. (See Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356-1357.) Caron's assertions of various perceived ethical transgressions by Mr. McCabe or his firm are not supported by the applicable law or the record. The trial court correctly determined that Caron had presented no "legally cognizable ground to disqualify counsel from this case." And, again, our review of the record reveals no support for Caron's suggestion that the trial court's ruling was a product of bias against her.
B. Defendants' Anti-SLAPP Motion Was Properly Granted.
Caron contends that the trial court should have denied defendants' anti-SLAPP motion. She also argues that her ex parte application to continue the hearing of the anti-SLAPP motion and lift the stay on discovery should have been granted. We disagree on both counts. We conclude that the trial court was correct to deny Caron's ex parte application and to grant the anti-SLAPP motion.
1. Standards of Review.
We conduct an independent review of the trial court's ruling on an anti-SLAPP motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) By its terms, the anti-SLAPP statute applies to any cause of action against a defendant "arising from any act of that person in furtherance of the person's right of petition or free speech . . . ." (§ 425.16, subd. (b)(1).) A claim affecting the exercise of these rights is subject to a special motion to strike unless the court determines there is a probability that the complainant will prevail on the claims. (§ 425.16, subd. (b).) The anti-SLAPP statute protects against the use of the judicial system to chill the constitutionally-protected right to make statements or writings before judicial or other official proceedings, and in connection with an issue under consideration or review by a judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)
The anti-SLAPP statute "posits . . . a two-step process for determining whether an action is a SLAPP." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) In the first step, the court decides whether the subject action arises from rights as defined in section 425.16, subdivision (c). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61 (Equilon); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Thereafter, the burden shifts to the opposing party to establish a "probability" that she will prevail. (§ 425.16, subd. (b); Equilon, supra, at p. 61.) To meet this burden, Caron would have to demonstrate that her claims against the moving parties—namely, Christopher Tiner, Mr. McCabe, and Neil Dymott—are supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.) Put another way, to prevail on the second step of the anti-SLAPP analysis, Caron would have to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by her is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded in part by statute on other grounds as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547-548.)
We review the trial court's denial of Caron's ex parte application to continue hearing of the anti-SLAPP motion and lift the stay on discovery for abuse of discretion. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247.) Under this standard, "'the reviewing court will not disturb the trial court's decision unless it "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."'" (Ibid.)
2. Additional Background.
In the FAC, Caron alleges that in July 2015 she attempted to serve Hi-Desert with a notice of intent to sue pursuant to section 364, subdivision (a), but was unable to do so. The FAC acknowledges that Dr. Tiner died in May 2015, and that Hi-Desert's office "was closed and vacated" shortly thereafter. Caron therefore "attempted to contact a possible nearest relative" of Dr. Tiner, and located "'Christopher Tiner, M.D., DDS." (Italics omitted.) Caron sent Christopher Tiner a certified mail notice that "sought to inquire as to (a) any relationship to Lonnie W. Tiner, DDS; (b) notification of dental malpractice injury, (c) need for microsurgery, (d) settlement proposal, and [(e)] information regarding the existence of a Lonnie W. Tiner, DDS Estate."
Section 364, subdivision (a), requires a defendant be given 90 days' prior notice before an action based on a health care provider's professional negligence may be commenced.
Caron further alleges that, in response to her notice, Christopher Tiner "did not make any effort to immediately contact [Caron] regarding her medical/dental injury . . . ." Instead, he contacted legal counsel, namely, Mr. McCabe and Neil Dymott. Mr. McCabe, too, "did not make any effort to immediately contact [Caron] regarding her injury . . . ." Instead, both Christopher Tiner and Mr. McCabe either negligently or intentionally failed to respond to Caron's notice. Caron contends this failure prevented her from obtaining the surgery she needed to treat the injuries she allegedly suffered from Dr. Tiner's alleged dental malpractice.
3. Analysis.
a. Protected conduct.
On the first prong of the two-part test for determining whether the anti-SLAPP statute applies, we analyze whether a defendant's acts underlying the plaintiff's cause of action were in furtherance of the defendant's right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319; Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 396.) "When we take this first step and determine whether the plaintiff's claims arise from defendant's protected activity, we do not consider the legitimacy of the plaintiff's claims." (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 776.)
"'A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.'" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see § 425.16, subd. (b) ["[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . shall be subject to a special motion to strike . . . ."].) "[C]ourts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.'" (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) Protection extends to "prelitigation conduct," so long as the conduct has some connection with the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn.11.) It extends not only to parties, but also to their counsel. (E.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221 [anti-SLAPP protection applied to attorney acting on behalf of clients].) "[P]rosecution of a civil action" is protected activity. (Rusheen, supra, at p. 1056.) But so too are acts taken in support of the defense of an action. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671-672 [attorneys' opposition to administrative agency's efforts to appoint receiver for client was protected by anti-SLAPP statute].) The scope of protection extends not only to affirmative acts, but also omissions or failures to act. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 90 [finding alleged "acts (or omissions)" to "fall[] squarely within the plain language of the anti-SLAPP statute"]; Peregrine Funding, Inc., supra, at pp. 671-672 [finding that while alleged "stalling and stonewalling tactics" on the part of the defendant attorneys "may not have been communicative [acts] per se, they appear to constitute 'conduct in furtherance of the exercise of the constitutional right of petition' [citation] in that they were litigation tactics the [defendant law firm] employed to benefit its client . . . ."].)
Caron's gross negligence and civil conspiracy causes of action fall well within the scope of the anti-SLAPP statute. The principal thrust of these causes of action is that Caron was injured by the defendants' response, or lack thereof, to her July 2015 letter. According to the FAC, this letter was, among other things, a notice of intent to sue pursuant to section 364, subdivision (a). Caron contends that Christopher Tiner and Mr. McCabe had a duty to respond to her letter "immediately," and that their decision to instead adopt a "'wait-and-see strategy'" regarding the threatened litigation constitutes gross negligence. (Italics omitted.) The alleged facts underlying Caron's civil conspiracy cause of action are simply the attorney-client communications between Christopher Tiner and Mr. McCabe, purportedly deciding to "forestall contact" with Caron instead of immediately contacting her in response to her letter to facilitate her "processing a claim" against the Estate. Caron concedes in her briefing on appeal that the "wrongdoing" alleged in the FAC's gross negligence and civil conspiracy causes of action was "Respondents' failure to respond to Appellant's notice to Dr. Tiner's Estate of her potential dental malpractice claim . . . ." Because Caron's gross negligence and civil conspiracy causes of action arise from the defendants' alleged conduct in connection with threatened litigation, it is protected activity for purposes of the first prong of the anti-SLAPP analysis.
b. Probability of prevailing.
To demonstrate a probability of prevailing on the second prong of the SLAPP analysis, an opposing party is "required both to plead claims that were legally sufficient, and to make a prima facie showing, by admissible evidence, of facts that would merit a favorable judgment on those claims, assuming plaintiff's evidence were credited." (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584.) Caron failed to carry this burden.
Caron's gross negligence and civil conspiracy causes of action suffer from a number of insufficiencies. Among other things, a party served with a notice of intent to sue pursuant to section 364, subdivision (a), has no duty to respond to that notice in any particular manner. To be sure, the purpose of the statute was to "'decrease the number of medical malpractice actions filed by establishing a procedure that encourages the parties to negotiate "outside the structure and atmosphere of the formal litigation process." [Citations.]' [Citation.]" (Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 308.) Notice of the contemplated litigation gives the health care provider an "opportunity to enter into settlement negotiations before a complaint is filed." (Ibid., italics added.) But nothing in the statute, or any other provision of law, requires the health care provider to make use of that opportunity. Caron's failure to establish that the defendants owed her a duty to respond to her notice of intent to sue is fatal to both her gross negligence and civil conspiracy causes of action. (See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [describing elements of gross negligence claim, which include "duty, breach, causation, and damages"]; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 ["By its nature, tort liability arising from conspiracy presupposes that the coconspirator . . . owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty."].)
Caron contends that "estate representatives" have a duty to "respond to claims against the estate within 45 days." She cites no authority for this proposition, however, and in fact, the Probate Code does not impose any such duty. Probate Code section 9256 provides that if the personal representative of an estate "has refused or neglected to act" within 30 days on a claim against the estate, "the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day." A creditor whose claim is rejected, either affirmatively or by action of section 9256, may then bring suit regarding the merits of the claim. (Prob. Code, § 9351.)
Caron also cites California Code of Regulations, title 10, section 2695.5, as a purported source of a duty to respond to her letter. That regulation, however, applies to licensees of the Department of Insurance or claims agents who receive notice of a claim against an insurance policy, which defendants are not. (Cal. Code Regs., tit. 10, § 2695.5 (Lexis Advance through Register 2018, No. 25, June 22, 2018).) Moreover, the regulation explicitly does not apply to require any response where the notice of claim is a notice of legal action. (Id., section 2695.5, subds. (b), (e).)
Also, in addition to failing to establish defendants had any duty to respond to her July 2015 letter, which they breached either out of negligence or with malicious intent, Caron's theory of causation and damages is fatally flawed. Essentially, Caron assumes defendants not only had a duty to respond in some manner to her claim, but to respond by entering into a quick settlement with her so that she would have the funds to undergo surgery immediately. They did not have any such duty, and to the contrary were well within their rights to oppose the threatened litigation on its merits.
Furthermore, as discussed, Caron's gross negligence and civil conspiracy causes of action are alleged to arise, in large part, from communications between Christopher Tiner and his attorneys, and their alleged decision to adopt a "'wait-and-see strategy'" in response to Caron's threatened litigation.[ICT 68 [quote], 70-71} As such, the claims fall squarely within the litigation privilege afforded by Civil Code section 47. The litigation privilege provides "absolute" protection to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212.) It applies to "any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution." (Id. at p. 212.) The privilege has been applied to "private communications between parties" and communications that were "related not only to actual but potential court actions." (Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 126.) Here, therefore, the alleged prelitigation communications between Christopher Tiner and Mr. McCabe regarding strategy after receiving Caron's July 2015 letter fall squarely within the scope of the litigation privilege.
In sum, the anti-SLAPP motion was properly granted because Caron's gross negligence and civil conspiracy causes of action arise out of protected conduct, and she has failed to demonstrate a likelihood of success.
c. Ex parte application to continue hearing of the anti-SLAPP motion and lift the stay on discovery.
Caron contends that the trial court erred by denying her ex parte application to continue the hearing on the anti-SLAPP motion and lift the statutory stay on discovery. We find no error.
To justify lifting the discovery stay mandated by the anti-SLAPP statute, the plaintiff must demonstrate that the proposed discovery is necessary in the context of the issues raised by the anti-SLAPP motion and must explain what facts the plaintiff expects to uncover. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593.) Caron contends that she "needed to discover documents concerning the activities, time-places, roles and identities of Dr. Tiner's Estate Representatives that were involved in receiving, processing, and handling of [her] Notice of Claim." She has articulated no coherent argument, however, as to why the discovery of such documents could have led to a different ruling on her anti-SLAPP motion. And in fact there is no reason to believe that such discovery could have led to the production of evidence sufficient to overcome the fatal defects in her gross negligence and civil conspiracy causes of action, discussed above. As such, the trial court did not err by denying her ex parte application for a continuance and to lift the discovery stay.
C. Defendants' Motion for Summary Judgment Was Properly Granted.
Defendants' motion for summary judgment was granted on the ground that Caron had failed to produce expert testimony in support of her claims based on professional negligence. We conclude that ruling was correct.
1. Standard of Review and Applicable Law.
The appellate court independently reviews an order granting summary judgment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In ruling on the motion, the court must "'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A defendant moving for summary judgment bears the burden of showing that one or more elements of the cause of action cannot be established by the plaintiff to the degree of proof that would be required at trial, or that there is a complete defense to it. (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331; Code Civ. Proc., § 437c, subd. (o)(2).) To be "material" for summary judgment purposes, the fact must relate to some claim or defense and it must be essential to the judgment in that, if proved, it could change the outcome of the case. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)
"[I]n any medical malpractice action, the plaintiff must establish: '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'" (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)
"'"The standard of care against which the acts of a [medical professional] 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 . . . ."'" (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) "When a defendant [in a medical malpractice case] moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.'" (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
2. Analysis.
Defendants' motion for summary judgment was supported by expert testimony that Dr. Tiner did not negligently cause Caron's alleged injuries and damages and that Dr. Tiner complied with the applicable standard of care, including with respect to obtaining Caron's informed consent prior to treatment. Caron failed to come forward with conflicting expert evidence, submitting only her own declaration based on her experience as a "clinical pharmacy practitioner," which the trial court reasonably concluded did not establish her expertise in the field of dentistry. Defendants, therefore, were "entitled to summary judgment" in their favor. (Munro v. Regents of University of California, supra, 215 Cal.App.3d at pp. 984-985.)
On appeal, Caron asserts that the trial court should have provided her a court-funded expert witness. She cites Evidence Code section 730, which provides in relevant part as follows: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required." (Evid. Code, § 730.)
It is well established, however, that the appointment of an expert witness pursuant to Evidence Code section 730 is a matter within the trial court's discretion. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1255.) "There is nothing in our law which makes it mandatory for a trial court to appoint a medical expert in any case." (Pink v. Slater (1955) 131 Cal.App.2d 816, 817-818 [discussing former Code Civ. Proc., § 1871, predecessor to Evid. Code, § 730].) The record contains no support for Caron's suggestion that the trial court's decision may have been a product of impermissible bias. Additionally, Caron's receipt of a fee waiver by the trial court does not mean that all the expenses necessary for prosecuting the litigation would be covered for her. Caron's mistaken "impression that all of her court costs would be covered" is not an appropriate ground to find an abuse of discretion by the trial court. (See Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 ["Pro. per. litigants are held to the same standards as attorneys."].)
Caron has demonstrated no error in the trial court's grant of summary judgment in favor of defendants.
D. The Trial Court Did Not Err by Denying Caron's Motion to Compel and Imposing Sanctions.
Caron contends that the trial court's June 28, 2016, order denying her motion to compel and imposing sanctions of $800 against her constitutes an abuse of discretion. We are not persuaded.
The trial court correctly determined that Caron's motion to compel and the underlying discovery request were "procedurally improper on numerous fronts." These improprieties include, among other things: (1) the circumstance that an automatic stay of discovery was in place when Caron propounded the discovery request because defendants' anti-SLAPP motion was pending (§ 425.16, subdivision (g)); (2) the discovery request Caron propounded, although styled as a request for admissions, in fact combined various forms of discovery requests in violation of section 2033.060, subdivision (h); (3) the discovery request did not comply with the Code of Civil Procedure's requirements for the contents of a request for admissions, or any other form of discovery (see § 2033.060 et seq.); (4) the motion to compel was not supported by the required separate statement (California Rules of Court, rule 3.1345); and (5) the motion to compel was not accompanied by a meet and confer declaration and, moveover, there is no indication in the record that Caron complied with her obligations to meet and confer with defendants prior to filing her motion to compel (§§ 2033.290, subd. (b), 2016.040.) Each of these defects constituted an independently sufficient basis for the trial court to deny Caron's motion to compel.
On appeal, Caron asserts that there was "no justification for the trial court to deny [her] motion . . . ." Her briefing contains no specific argument, however, demonstrating that her motion to compel did not suffer from the defects listed above. Caron's failure to understand the discovery process or the basis of the trial court's ruling is not an appropriate ground to conclude her motion should have been granted or the trial court should have allowed her to "re-draft and re-file" the motion, as she would have it. (See, e.g., Kobayashi v. Superior Court, supra, 175 Cal.App.4th at p. 543.)
Caron also has demonstrated no abuse of discretion with respect to the trial court's award of sanctions. Because Caron failed to meet and confer as required by the Code of Civil Procedure before filing her motion to compel, the trial court was required to impose sanctions and, even if not required, a discretionary award of sanctions would have been well within the bounds of reason. (See §§ 2023.020, 2033.290, subd. (d).) On appeal, Caron has raised no argument that the award of $800 was unreasonable on its face, asserting only that the motion to compel should have been granted.
We conclude that Caron has demonstrated no error with respect to the trial court's June 28, 2016, order denying her motion to compel and imposing sanctions against her.
IV. DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.