Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG06302527
NEEDHAM, J.
Jose Melchor and Natalie Melchor, by and through their guardians ad litem, Martin Melchor and Ramona Melchor, appeal from a judgment entered after the court granted the summary judgment motion of respondents Jorge Pena, M.D. and Gina Marie Adair, M.D. Appellants contend: a triable issue of material fact precluded the grant of summary judgment; the court erred in permitting the summary judgment hearing to be heard on less than the statutory-required notice; and the court erroneously denied their request for a continuance of the motion hearing. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In December 2006, Jose and Natalie Melchor, through their guardians ad litem, filed a complaint alleging professional negligence on the part of numerous defendants. Appellants alleged that the defendants’ negligent examination, diagnosis, and treatment resulted in Jose and Natalie suffering herpes type II meningoencephalitis and developing cerebral palsy.
Because their last names are the same, we refer to Ramona Melchor, Jose Melchor and Natalie Melchor by their first names for clarity, without disrespect.
On January 24, 2008, appellants substituted Dr. Pena in the place of Doe 1. The complaint was later amended to add Dr. Adair as a defendant.
A. Pena’s and Adair’s Motion for Summary Judgment
Drs. Pena and Adair filed a joint motion for summary judgment, contending that appellants could not establish that the doctors breached their duty of care or contributed to the alleged injury. In their statement of undisputed material facts, Drs. Pena and Adair asserted the following based on supporting evidence.
Ramona Melchor became pregnant with twins, appellants Jose and Natalie, in 2001. Her primary physician for prenatal care, Dr. Indira Fulara, conducted a standard prenatal consultation, including a detailed medical history, and obtained the standard prenatal panel of laboratory tests. Ramona’s laboratory results as to sexually transmitted diseases gonorrhea and Chlamydia were negative.
In response to queries by both Dr. Fulara and a perinatal health worker, Ramona denied that she or her husband had any history of sexually transmitted diseases, including herpes. Ramona never told any health care provider at Family Care Center Merced, Mercy Medical Center Merced (Mercy), or University Medical Center (University) that she had sores on her genitals before Jose and Natalie were born.
On January 18, 2002, Ramona reported to Mercy that she was having contractions. She was transferred to University for a higher level of care. The transfer report stated that Ramona had “no lesions.” University admitted Ramona with a diagnosis of preterm labor.
At University, respondent Dr. Pena, a third-year resident, performed Ramona’s obstetrical admission history and physical. It was Dr. Pena’s custom and practice to ask an OB/GYN patient whether she or her partner had any sexually transmitted diseases. According to the declaration of an expert witness (Dr. Mason), Dr. Pena met the applicable standard of care in performing the initial history and physical examination.
On February 4, 2002, Ramona’s membranes ruptured spontaneously with emission of amniotic fluid. The nursing staff contacted respondent Dr. Gina Adair, a second-year resident at University. Dr. Adair examined Ramona. Ramona’s labor continued without incident.
Ramona had four vaginal examinations at Mercy and multiple subsequent vaginal examinations at University during the course of her hospitalization for preterm labor. None of the examining physicians or nurses observed any signs or symptoms of genital herpes in Ramona, and Ramona denied having any herpes-related symptoms. No chart entries state that Ramona had symptoms or complaints consistent with herpes while she was hospitalized at University. Because there was no evidence of the herpes virus in Ramona, and because Ramona had expressly told her treating physicians that neither she nor her husband had any sexually transmitted diseases (including herpes), the applicable standard of care did not require that Jose and Natalie be delivered by Cesarean section.
Jose and Natalie were born on February 4, 2002. Ramona experienced heavy postpartum bleeding with clots, which were managed by Drs. Pena and Adair, and no further excessive vaginal bleeding occurred. Ramona recovered well after her delivery and was discharged from University to her home on February 6, 2002.
At the time of the birth of Jose and Natalie, Dr. Adair had not completed 24 months of her residency and was not required to have a California medical license to engage in the practice of medicine as a resident in the UCSF/Fresno OB/GYN residency program. As a second-year resident, Dr. Adair was supervised by the teaching faculty in the residency program by third- and fourth-year residents, who acted under the direction and supervision of teaching faculty. Dr. Adair, as well as Dr. Pena, were supervised by Dr. Feldman, who was identified as Ramona’s attending physician at University.
Supported by the declaration of an expert witness (Dr. Mason), Drs. Pena and Adair asserted the following as undisputed facts: Drs. Pena and Adair, and others at University, met the applicable standard of care in all respects in providing obstetrical care to Ramona; and no improper action or inaction on the part of Dr. Pena, Dr. Adair, Dr. Feldman or any other physicians, faculty members or residents caused or contributed to any of appellants’ alleged harm.
B. Appellants’ Opposition to Summary Judgment Motion
Appellants’ opposition to the motion for summary judgment is not in the record. According to the reply brief of Drs. Pena and Adair in support of the summary judgment motion, it appears appellants contended: (1) appellants received 69 rather than 77 days notice of their summary judgment motion because appellants’ counsel’s office ZIP Code was incorrectly stated on the envelope containing the motion papers; (2) the statement of undisputed material facts of Drs. Pena and Adair violated the California Rules of Court, because each doctor should have provided a separate statement; (3) there was a disputed factual issue as to who delivered the twins; and (4) Dr. Adair was not supervised by Dr. Feldman or Dr. Pena. In addition, appellants apparently objected to the admissibility of the declarations of Dr. Mason and Dr. Feldman, which had been filed in support of the summary judgment motion.
Appellants also sought a continuance of the summary judgment hearing so they could take Dr. Adair’s deposition.
C. Trial Court’s Ruling
The court granted the motion for summary judgment, finding that appellants had not established any triable issue of material fact. The court denied appellants’ request for a continuance. The court also overruled appellants’ objections to Dr. Pena’s and Dr. Adair’s evidence – a ruling appellants do not contest here.
The court’s ruling was consistent with its order granting the summary judgment motion filed by Fresno Community Hospital and Medical Center (Fresno Community). In making that ruling, the court found: “There is no dispute that all physicians involved in Ramona Melchor’s care at UMC [University] met the standard of care.” The court further ruled: “Plaintiff’s evidence that Gina Adair, M.D. was not licensed at the time she participated in the delivery of plaintiffs does not change the result.” The summary judgment for Fresno Community is the subject of appeal number A124445.
This appeal followed.
II. DISCUSSION
Appellants contend the court erred in granting summary judgment and in denying their request for a continuance of the summary judgment hearing.
A. Summary Judgment Was Proper
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the non-moving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (Ibid.; Thomas, supra, 98 Cal.App.4th at p. 72.)
In the matter before us, appellants sued Drs. Pena and Adair for negligence or, more precisely, medical malpractice. The elements of this cause of action include that the healthcare professional failed to exercise the skill, prudence and diligence as exercised by other members of the profession under similar circumstances, and that this breach of the standard of care caused the alleged injury. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
In their summary judgment motion, Drs. Pena and Adair contended there was no evidence they breached the applicable standard of care or caused Jose’s or Natalie’s alleged harm. In support of their arguments, they presented expert witness testimony, by declaration from Dr. Mason, that Dr. Pena and Dr. Adair each met the applicable standard of care in all respects, and neither they nor Dr. Feldman contributed to appellants’ damages. From this evidence, a trier of fact could reasonably conclude that Drs. Pena and Adair met the applicable standard of care and did not cause appellants’ injury.
The burden therefore shifted to appellants to produce evidence establishing a triable issue of material fact. In particular, appellants were required to come forward with conflicting expert evidence. Expert opinion testimony is “required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) As stated more than two decades ago in Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, at pages 984-985: “As previously noted, plaintiffs failed to submit the declaration of an expert in opposition to the motion for summary judgment. Accordingly, no triable issue of fact was presented regarding defendants’ compliance with the relevant medical standard of care and summary judgment on plaintiffs’ cause of action for medical malpractice must be affirmed. ‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant 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.’ [Citations.]” (Italics added.)
Appellants fail to establish that they produced evidence sufficient to demonstrate a triable issue of material fact. Appellants do not even include in the appellate record their response to the separate statement of material facts of Drs. Pena and Adair.
In any event, based on the record and the briefs filed in this appeal, it is apparent that appellants did not submit any expert evidence from which a trier of fact could conclude that Dr. Pena or Dr. Adair breached the standard of care or caused appellants’ injuries. Nor did appellants establish any exception to the rule requiring such expert testimony to avoid summary judgment. Accordingly, appellants failed to establish a triable issue of material fact, and summary judgment was properly granted.
Appellants nonetheless contend: (1) the trial court erred in granting summary judgment because appellants were not given adequate notice of the summary judgment motion; and (2) a material issue of fact existed as to whether Dr. Pena and Dr. Adair were negligent. Appellants’ arguments are meritless.
1. Notice of Summary Judgment Motion
Code of Civil Procedure section 437c, subdivision (a) provides that “[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” Additional time is required if the papers are served by mail. (Ibid.)
As part of their opposition to the summary judgment motion, appellants contended that the summary judgment motion was not served so as to give the required statutory notice, because the address for appellants’ counsel did not have the correct ZIP Code (and, presumably, appellants’ counsel did not receive the motion in a timely manner).
The trial court rejected appellants’ argument, with the following explanation: “Plaintiffs have waived their claim that they did not receive 75-days notice by presenting arguments on the merits coupled with an absence of any showing of prejudice.” Appellants contend the court abused its discretion.
For purposes of this appeal, we will assume that appellants’ counsel did indeed receive the motion papers less than 75 days before the hearing date, due to the erroneous ZIP code. Nonetheless, appellants cannot challenge the allegedly defective notice, because they filed an opposition to the summary judgment motion on the merits, they appeared and argued the merits at the hearing, and they did not request a continuance of the hearing based on the purportedly insufficient notice.
On point is Carlton v. Quint (2000) 77 Cal.App.4th 690 (Quint). In Quint, the plaintiffs claimed that the defendant’s service of a summary judgment motion had not provided the statutory notice to which the plaintiffs were entitled. (Id. at p. 693.) The appellate court held that, even if the plaintiffs had not been properly served, reversal of the summary judgment was not required. The court explained: “... a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective. [Citations.]” (Id. at p. 697.) Because the plaintiffs had opposed the motion on the merits (as well as raising the notice issue), appeared and argued at the hearing, never requested a continuance of the hearing due to the notice issue, and never claimed prejudice by reason of insufficient notice, they could not contend the notice was insufficient or defective. (Id. at p. 697.)
Here, appellants opposed the motion on the merits, appeared and argued at the hearing, never requested a continuance of the hearing date due to the notice issue, and never established prejudice by reason of insufficient notice. In accordance with Quint, appellants cannot challenge the sufficiency of the notice. (See also Mann v. Cracchiolo (1985) 38 Cal.3d 18, 27 [“ ‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.]’ ”].)
Appellants’ reliance on Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758 (Urshan) is misplaced. In Urshan, the trial court suggested that the plaintiff file a summary judgment motion against an unrepresented defendant and issued an order shortening the required notice period, without consulting the defendant. (Id. at p. 763.) The court of appeal concluded the trial court had no authority under the summary judgment statute to shorten the notice period without the other party’s consent. (Id. at pp. 764-766.) The court distinguished Quint on the ground that Quint involved an alleged defect with the movant’s service of notice, not an unauthorized court order shortening the notice period for the summary judgment hearing. (Id. at p. 768.)
Here as in Quint, the alleged defect raised by appellants was based on the moving party’s service of notice, not on a court order shortening time. Far from helping appellants’ cause, Urshan confirms that the rule in Quint applies here, and appellants have waived their right to challenge the notice.
Appellants’ reliance on Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645 (Boyle) fares no better. In Boyle, the court held that the San Francisco Superior Court’s general order permitting summary judgment motions to be heard on 60-days notice rather than 75-days notice was invalid, and the plaintiffs had not waived their challenge to the general order by arguing the merits of the summary judgment motion. (Id. at pp. 647, 650.) The court explained that Quint was “not to the contrary, ” since the issue in Quint was whether the nonmoving party’s appearance and filing of a substantive opposition showed that the moving party provided adequate notice, while the issue in Boyle (similar to Urshan) was whether the general order itself was valid. (Id. at pp. 650-651.)
In the matter before us, the trial court did not issue an order reducing the notice period for the summary judgment hearing. Rather, the moving parties purportedly failed to timely serve the notice, and the issue is whether appellants waived their right to challenge it. Quint applies, and Boyle does not.
Appellants also rely on Robinson v. Woods (2008) 168 Cal.App.4th 1258 (Robinson). Robinson, however, actually confirms that appellants’ analysis is incorrect. In Robinson, defendants moved for summary judgment, noticing the hearing for less than the statutorily required period and setting the hearing within 30 days of the trial date. Plaintiffs filed opposition papers raising these errors but did not address the motion on the merits. The trial court continued the hearing for four days. At the hearing, without any opposition on the merits having been filed, the court granted the summary judgment motion. (Id. at pp. 1260-1261.)
After reviewing Quint, Urshan, and Boyle (Robinson, supra, 168 Cal.App.4th at pp. 1262-1267), the appellate court concluded: “Where inadequate notice is approved by the trial court – through either a case-specific order (Urshan) or a local court order (Boyle) – a full-blown opposition on the merits, in writing and at the hearing, does not appear to waive a timeliness objection.” (Id. at p. 1267.) However, the court distinguished the situation in Quint, where (as here) untimely notice is attributable to a statutory violation “by the moving party (see § 437c, subd. (a)).” (Id. at p. 1267.) The court then ruled that the trial court had erred in continuing the hearing date for just four days, since at that point the statutory notice period had to begin anew. (Id. at pp. 1267-1268.) The court further noted that, unlike the opposing party in Quint, the plaintiffs in Robinson did not argue the merits. (Ibid.) Thus, Robinson was distinguishable from Quint (and the matter before us), because (1) it was the court’s order setting the hearing date in Robinson that was found to be erroneous and (2) defendants had not waived their right to object anyway because they did not file an opposition on the merits.
Here as in Quint, and unlike Urshan, Boyle, and Robinson, the allegedly untimely notice was attributable to the moving party, and appellants had filed an opposition on the merits. Appellants have no challenge to the sufficiency of the notice.
We also note – as did the trial court – that appellants have not shown any prejudice by either the reduced notice period or the trial court’s ruling. To the contrary, the record suggests no prejudice at all. Appellants served their opposition to the motion on January 20, 2009 – seven days before it had to be filed. (Code Civ. Proc., § 437c, subd. (b)(2).) Appellants argued the merits of the summary judgment motion at the hearing, they did not advise the trial court of any specific prejudice resulting from the inadequate notice, and they do not explain what harm was caused by the purported delay in their receipt of the moving papers.
Lastly, in their reply brief in this appeal, appellants cite Moghaddam v. Bone (2006) 142 Cal.App.4th 283 for the proposition that a defendant’s use of an incorrect ZIP Code in serving a notice of motion means that the plaintiff was not given proper notice of the motion. (Id. at p. 289.) In Moghaddam, however, the plaintiff contended he had neverreceived the motion papers, and he did not oppose the motion or appear at the motion hearing. (Id. at p. 287.) Here, appellants received the summary judgment motion, filed an opposition on the merits before the opposition was due, and appeared at the hearing. Moghaddam is inapposite.
Appellants fail to establish reversible error.
2. No Triable Issue of Material Fact
Appellants claim there was a triable issue of material fact precluding summary judgment because it was unclear who actually delivered Jose and Natalie and it was disputed whether the deliveries occurred at University or at Fresno Community Hospital and Medical Center (Fresno Community). Appellants are incorrect.
Even if there were a factual dispute over which doctor delivered Jose and Natalie, the dispute would not be material. Whether the deliveries were performed by Dr. Feldman, Dr. Adair, or Dr. Pena, the undisputed expert testimony establishes that all physicians involved in Ramona’s care at University met the applicable standard of care. No matter which one of them delivered the twins, there is no expert witness evidence that any of them negligently contributed to appellants’ damages. Therefore, a conflict in the evidence as to which doctor delivered the twins does not create a triable issue as to whether Dr. Pena or Dr. Adair met the standard of care or caused the alleged harm.
Similarly, the issue of whether the twins were born at University or at Fresno Community is irrelevant. In the first place, there does not appear to be any triable issue of fact. The inference from the evidence submitted by Drs. Pena and Adair is that Jose and Natalie were delivered at University. The record on appeal does not indicate that appellants disputed this issue with admissible evidence. Although appellants claim in their opening brief that the trial court found the delivery took place at Fresno Community, citing page 593 of the clerk’s transcript, page 593 contains no such reference. Drs. Pena and Adair pointed this out in their respondents’ brief, but appellants’ reply brief does nothing to correct or clarify their position or provide a citation to the record. (Indeed, the reply brief does not contain any citation to the record to support any factual assertion.) We also note that appellants admitted the twins were born at University in responding to Mercy’s summary judgment motion.
In any event, even if there were a factual dispute as to where the deliveries took place, the dispute would be immaterial to the summary judgment motion. Because there is no expert witness evidence of any breach of the standard of care by any physician or staff associated with the deliveries, where the deliveries occurred makes no difference. To put it slightly differently, since it is undisputed that Drs. Pena and Adair did not breach the standard of care or contribute to appellants’ injuries, it matters not whether they acted at University or somewhere else.
Appellants fail to establish that the court erred in granting summary judgment.
B. Denial of Continuance
Appellants contend the trial court erred in denying a continuance of the summary judgment hearing so that appellants could take Dr. Adair’s deposition. Their contention is meritless.
Code of Civil Procedure section 437c, subdivision (h), permits a continuance of a summary judgment hearing as follows: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”
The party seeking a continuance must show: (1) the facts to be obtained in discovery are essential to opposing the motion; (2) reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) The party seeking the continuance must “provide supporting affidavits or declarations detailing facts that would establish the existence of controverting evidence.” (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)
Here, as part of appellants’ opposition to the summary judgment motion, appellants’ counsel submitted a declaration claiming that Dr. Adair’s deposition was set for January 28, 2009 (a day after the deadline for filing the opposition), and the deposition could not have been set earlier “because this was the earliest date when all defense counsel were available.” Appellants’ counsel claimed in a conclusory manner: “Plaintiffs need the evidence to be obtained at the deposition of Gina Marie Adair, M.D. to ascertain her culpability, if any, and plaintiffs request a continuance on that ground.”
The trial court ruled: “Plaintiffs’ request for a continuance based on the pending deposition of Defendant Adair is DENIED. Plaintiffs do not indicate how this testimony is likely to create a triable issue with regard to the issues of Defendants’ breach of the standard of care and causation. Those issues require expert testimony.” We review this ruling for an abuse of discretion. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100.)
The trial court did not abuse its discretion. Appellants’ counsel did not detail in his declaration what particular facts would be discovered in the deposition of Dr. Adair that would show the existence of controverting evidence. Counsel did not explain why the testimony of Dr. Adair would be material to the issue of whether Dr. Adair or Dr. Pena were negligent, in light of the fact that a triable issue of material fact could be shown only by expert testimony. Nor did counsel specify with any degree of particularity the reason that the deposition could not have been obtained earlier. Counsel only attached a fax from one of the defense attorneys, which stated: “Of the dates offered in your letter of 10/29/08 for Dr. Adair’s deposition, only 01/28/09 is convenient for this office.” There is no showing why arrangements for Dr. Adair’s deposition could not have been made earlier or on alternative dates.
Indeed, we note that way back in July 2008 the court had continued the hearing on Fresno Community’s summary judgment motion for nearly four months to permit appellants to seek discovery from Dr. Adair, advising appellants to investigate the issue promptly so the motion could be decided at a hearing on November 18, 2008. Appellants failed to take the deposition of Dr. Adair by that date. Appellants had two more months to take Dr. Adair’s deposition before the hearing on the summary judgment motion of Drs. Pena and Adair, but again failed to do so.
Furthermore, because expert witness evidence was required to create a triable issue of material fact, and appellants did not provide any expert witness evidence, appellants have not shown that any error in denying the request for a continuance was prejudicial. Appellants fail to establish a prejudicial abuse of discretion.
On July 22, 2010, this court issued a notice under rule 8.276 of the California Rules of Court that the court is considering the imposition of sanctions against appellants’ counsel in one or more of the appeals numbered A124445, A124448, and A124449. The court will rule on the sanctions issue as set forth in the notice, in a separate order.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.