Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. S.C. 089453, Elizabeth A. Grimes, Judge.
Patricia Pierson, in pro. per., for Plaintiff and Appellant.
Poole & Shaffery, John H. Shaffery, Rey S. Yang and Jaion Chung for Defendant and Respondent.
COFFEE, J.
Patricia Pierson appeals from a judgment entered after orders granting summary judgment in favor of respondent Philips Medical Systems (Philips) and dismissing all other parties. She contends that the court erred when it lifted a stay of the court action while arbitration was pending as to other parties, when it granted Philips's motion for summary judgment because she had not obtained satisfactory discovery responses from Philips, and when it dismissed Max MRI. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed a complaint in which she alleged that a radionuclide camera crushed her knees during a bone scan imaging study of her foot. The bone scan was conducted at Tower Beverly Roxsan, and appellant initially sued Tower Beverly Roxsan, and related parties, Susan Jordan, Karen Charles, Radnet Management, Inc., and Tom D. Green (collectively the Tower Roxsan defendants). These parties moved to stay the action and to compel arbitration, based upon a written arbitration agreement. (Code Civ. Proc., § 1281.2.) While the petition to compel arbitration was pending, appellant added Max MRI as a new party.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
The court compelled arbitration of the Tower Roxsan defendants. It also stayed the court action against Max MRI pending the outcome of the arbitration proceeding. Appellant filed a petition for writ of mandate challenging the stay order. We denied her petition. (Pierson v. Tower Roxsan et al., Court of Appeal, Div. 8, 2d Civil Case No. B209367, denied Aug. 8, 2008.)
The trial court conducted periodic case management conferences concerning the status of the arbitration. In December 2008, the parties informed the court that the arbitration was scheduled to take place for one-half day on March 3, 2009. The court set the matter for a post-arbitration case management conference for March 17, 2009. Meanwhile, the case was reassigned to another trial judge.
By March 17, the arbitration was not completed. It had been reset for a two-day hearing later in March and the arbitrator had closed arbitration discovery. On its own motion, the newly-assigned trial judge scheduled the case for trial setting as to Max MRI on April 22, 2008, and for an order to show cause regarding dismissal of the Tower Roxsan defendants on the same date on the grounds that all claims against them would be resolved in arbitration.
On April 22, the court dismissed the Tower Roxsan defendants, vacated the stay, and set the matter for trial for November 23, 2009. Subsequently, appellant added the manufacturer of the camera, Philips, as a new defendant. Philips conducted discovery, and, according to appellant, shared discovery with the Tower Roxsan arbitration defendants. Appellant sought a protective order from the arbitrator to prevent discovery sharing, on the grounds that discovery was closed in the arbitration, but the arbitrator denied her request. Appellant did not initiate any discovery against Philips in the court case until six weeks after Philips filed a motion for summary judgment.
When the court vacated the stay, Max MRI filed a demurrer to the complaint. The court sustained the demurrer with leave to amend. Appellant did not file an amended complaint within the time allowed. Accordingly, the court dismissed Max MRI.
In August, Philips moved for summary judgment on the grounds there was no evidence of defect, causation, control of premises, or contract to support appellant's causes of action against it for product defect, negligence, premises liability, or breach of contract. In support of its motion, Philips offered affidavits, deposition testimony, and a medical report which demonstrated that the camera was operating correctly when it was inspected one day after appellant's scan, that the camera must touch a patient's body to obtain an image, that the technician who conducted appellant's scan noted no problems during the process, that nine days after the incident a physician examined appellant and found a full range of motion and no swelling or tenderness in her knees, and that Philips had no contractual agreement with appellant. Appellant admitted that Philips had no control over the premises where the scan occurred. Appellant filed a separate statement of facts in which she disputed some of Philips's stated facts, but she did not file written objections to Philips's evidence. (Cal. Rules of Court, rule 3.1354(a) & (b).)
Appellant served her first discovery on Philips such that Philips's responses would have been due within a week of the hearing on the motion for summary judgment. On appeal, appellant explains that she waited to propound any discovery on Philips until the first arbitration session ended. The first part of the arbitration hearing was conducted from September 15 through 17, 2009. It resumed October 26, three days before the hearing on the motion for summary judgment.
Appellant hand-delivered her discovery requests on September 23, 2009, making responses due October 23, six days before the October 29 hearing, and one day before discovery cutoff. (§§ 2030.260, subd. (a), 2031.260, subd. (a), 2033.250, subd. (a) & 2024.020.)
While the motion for summary judgment was pending, appellant moved the trial court twice for an order that would stay the entire action pending resolution of the arbitration. Her requests were made on the ground that a stay was necessary to prevent inconsistent rulings. She did not mention the motion for summary judgment or the timing of her discovery, and did not request an opportunity to gather evidence in opposition to the motion. The court denied her stay requests.
In opposition to the motion for summary judgment, appellant presented her own declaration, a declaration of a technician, some unauthenticated documents, and some testimony that was developed in the arbitration hearing. She declared that the machine dropped down on her knees with crushing force, causing lasting injuries. The technician identified the camera as one that had been installed in 1996. The unauthenticated documents included "adverse event" reports which appear to have been printed from a website of the United States Food and Drug Administration (FDA), service records, a product manual, and medical records. Appellant withdrew her cause of action for premises liability.
Philips filed written objections to all of appellant's evidence, except the declarations of appellant and the technician. Several days before the hearing, Philips partially complied with appellant's discovery requests and offered to produce additional documents if she would sign a confidentiality agreement which would prevent her from using the documents against the Tower Roxsan defendants in the arbitration. Appellant did not move to compel further response.
At oral argument on the motion for summary judgment, appellant asked the court for a day or two to prove that Philips had not fully complied with her discovery requests. The court deemed appellant's request to be a request for a continuance to obtain additional discovery (§ 437c, subd. (h)), and denied it because it was not made before or at the time of filing the opposition and because the court was "not persuaded that there was any legal or equitable reason" to continue the hearing.
The court sustained Philips's evidentiary objections and granted the motion. The court found there was no triable issue of material fact because Philips demonstrated that appellant had no evidence that the device manufactured by Philips was a substantial factor in causing injury to her or that Philips had breached any express or implied contract with her.
Appellant moved for a new trial on the ground that her evidence was admissible under exceptions to the hearsay rule and that Philips had withheld information responsive to her discovery requests. She asserted that, if Philips would fully respond to her discovery, she could prove that Philips failed to perform a retrofit as required by an FDA notice of corrective action. The court denied the motion.
DISCUSSION
Order Lifting Stay
Appellant contends that the trial court erred when it lifted the stay because no party had filed a noticed motion asking it to do so and because termination of the stay forced appellant to simultaneously prosecute the arbitration and the court action. The order is not appealable. (§§ 904.1 & 1294.)
Order Granting Summary Judgment
Appellant contends that (1) the trial court should have continued the hearing on the motion for summary judgment to allow her to gather evidence in opposition, (2) it relied on inadmissible hearsay evidence to grant Philips's motion, and (3) it erroneously failed to consider exceptions to the hearsay rule which rendered her opposing evidence admissible. We disagree.
Appellant was not entitled to a continuance because she did not timely submit a supporting affidavit. Section 437c, subdivision (h) requires the court to order a continuance of a motion for summary judgment to permit affidavits to be obtained or discovery to be had but only upon an affidavit that demonstrates "that facts essential to opposition may exist but cannot, for reasons stated, then be presented...." The affidavit must be submitted with the opposing papers or, by ex parte motion, "on or before the date the opposition response to the motion is due." (Ibid.) Here, appellant did not submit an affidavit with her opposing papers demonstrating that any facts essential to opposition might exist or explaining the reasons they could not then be presented. She knew when she filed her opposition that Philips's discovery responses were not yet due and could not be incorporated into her opposing papers whether or not they were satisfactory. Nevertheless, she did not bring the issue to the court's attention until the hearing on the motion. She did request, before the hearing, that the action be stayed for evidentiary and other reasons, but her requests were not accompanied by any affidavit demonstrating a need for more time to gather evidence to oppose the motion for summary judgment.
Appellant forfeited her evidentiary arguments because she did not make them at the hearing. (§ 437c, subd. (h).) The California Rules of Court require written objections to be filed at the same time as the opposition, separately from other opposing papers. (Cal. Rules of Court, rule 3.1354(a) & (b).) Appellant did not preserve her objection to Philips's supporting evidence in the trial court. She did not argue at the hearing, as she does now, that her FDA reports were admissible under the public records exception to the hearsay rule (Evid. Code, § 1280), that the service records were admissible under the business records exception (id., § 1271), and that the arbitration testimony was admissible under the exception for former testimony (id., § 1292) and not within the scope of California Rules of Court, rule 3.826(c). Even if she had argued those hearsay exceptions, the court could not have applied them because she did not provide any foundational evidence that could have supported findings that the exhibits were authentic public records, business records, or prior testimony.
Order Dismissing Max MRI
We reject appellant's contention that the court erred when it dismissed Max MRI. The court may dismiss a defendant after the court sustains a demurrer with leave to amend, if the plaintiff does not amend within the time allowed and either party moves for dismissal. (§ 581, subd. (f)(2).) On May 28, 2008, the court sustained Max MRI's demurrer to the complaint, and granted appellant 30 days leave to amend. Appellant did not amend her complaint within the time allowed. The court properly granted Max MRI's ex parte application for dismissal, after hearing oral argument and taking the matter under submission.
Max MRI has not appeared in this court.
Appellant asserts that she timely filed an amended complaint on June 26, which was misnumbered. She did not. On June 26, she filed a "[P]roposed Fourth Amended Complaint" with a motion for leave to add a product liability cause of action against Max MRI. The motion was taken off calendar when Max MRI was dismissed.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: YEGAN, Acting P.J., PERREN, J.