Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. CV-259040. Sidney P. Chapin, Judge.
Law Office of Donald C. Duchow and Donald C. Duchow for Plaintiff and Appellant.
LeBeau-Thelen and Dennis R. Thelen for Defendant and Respondent.
OPINION
Kane, J.
In this medical malpractice case, defendant Gordon Mitts, M.D., moved for summary judgment on the grounds that his care and treatment of plaintiff, Arlene Smith, were within the standard of care and did not cause her alleged injuries. Additionally, defendant moved for summary judgment on the ground that the statute of limitation expired. The motion was supported by specific evidence submitted by defendant and referred to in his separate statement. Plaintiff’s opposition consisted solely of argument. No evidence was presented by plaintiff, and no objections were made to defendant’s evidence. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals, contending the matters raised by defendant’s motion were triable issues of fact based on the contested pleadings alone. We disagree. Because defendant made a prima facie showing of undisputed facts entitling him to judgment, the burden of producing evidence shifted to plaintiff and she could not rely on allegations in her complaint to create a triable issue of fact. Accordingly, the judgment is affirmed.
In a summary judgment motion, a “separate statement” setting forth the material facts that are claimed to be undisputed, and referring to the evidence in support thereof, must be filed by the moving party, and a separate statement in response thereto must be filed by the opposing party, including a reference to any evidence the opposing party contends is sufficient to create a triable issue of material fact. (Code Civil Proc., § 437c, subds. (b)(1), (b)(3); Cal. Rules of Court, rule 3.1350(d), (f) & (h).) A party’s failure to comply with the requirement of a separate statement allows the trial court to rule against that party. (Code Civ. Proc., § 437c, subds. (b)(1), (b)(3).) Here, defendant complied with the requirement of a separate statement, but plaintiff did not. Thus, the trial court could have granted the summary judgment motion on that ground.
FACTS AND PROCEDURAL HISTORY
On September 7, 2006, plaintiff filed her complaint against defendant setting forth a single cause of action for medical malpractice. The complaint alleged that defendant performed breast surgery on plaintiff in a manner that was below the standard of care, thereby resulting in plaintiff experiencing disfigurement, pain, suffering and emotional distress. Defendant filed his answer on December 15, 2006, denying all material allegations of the complaint and raising the statute of limitation as an affirmative defense.
On July 20, 2007, defendant filed his motion for summary judgment. The motion was made on three distinct grounds, including that defendant’s medical treatment of plaintiff in performing the breast augmentation surgery was within the applicable standard of care, that the surgery was not the proximate cause of plaintiff’s alleged injuries, and that plaintiff’s complaint was filed beyond the statute of limitation. Defendant’s separate statement of undisputed material facts referenced the evidence submitted by defendant in support of the motion, including the declaration of defendant’s expert, Harvey Zarem, M.D., excerpts of plaintiff’s deposition, and various medical records of plaintiff.
On September 19, 2007, plaintiff filed a written “response” to defendant’s motion for summary judgment. The two-page written response consisted solely of argument which stated as bare conclusions, without any legal or factual support, that the matters on which the motion was based were triable issues of fact. For example, plaintiff’s written response advised that “[w]hether Defendant’s care and treatment of Plaintiff met the standard of care or was below the standard of care presents triable issues of fact.” Similar one-sentence statements were made therein as to the other two grounds for the motion. These conclusory arguments constituted the entirety of plaintiff’s written opposition. No separate statement was filed by plaintiff. No evidence was submitted by plaintiff. No objections were made by plaintiff to defendant’s evidence.
At the hearing, plaintiff’s counsel argued that the medical records referenced in the motion and relied upon by defendant’s expert were not meaningful because plaintiff did not have a chance to cross-examine defendant concerning those records. The trial court replied that there was no record of a notice of deposition on file. There was no indication of any effort by plaintiff’s counsel to pursue such cross-examination regarding the medical records, nor was there any request made pursuant to Code of Civil Procedure, section 437c, subdivision (h), for a continuance of the hearing for the purpose of discovery. When oral argument was completed, the trial court granted the motion for summary judgment.
Plaintiff also noted that defendant’s expert based his opinion on plaintiff’s deposition and medical records, but the expert did not personally examine plaintiff’s condition. (See fn. 4, post.) This was not presented by plaintiff as an evidentiary objection to admissibility of the expert’s declaration. We observe that Code of Civil Procedure, section 437c, subdivision (e), expressly provides that where a party is otherwise entitled to summary judgment pursuant to section 437c, “summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations.”
Unless otherwise indicated, all further statutory citations are to the Code of Civil Procedure.
The trial court issued its order granting defendant’s motion for summary judgment on October 22, 2007. Summary judgment was entered in favor of defendant on October 22, 2007. Plaintiff’s timely appeal followed.
DISCUSSION
In her appeal, plaintiff contends the trial court erred in granting summary judgment because the issues framed by plaintiff’s complaint -- such as whether defendant’s conduct fell below the standard of care -- were inherently factual issues. In essence, plaintiff relies on her pleadings to defeat defendant’s evidentiary showing. As explained below, plaintiff’s argument is without merit and reveals a basic misunderstanding of the summary judgment process.
I. Overview of Summary Judgment Law and Standard of Review
Summary judgment is appropriate when all the papers submitted show there is no triable issue of any material fact and the moving party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of the law of summary judgment is to provide 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, 843.) Summary judgment enables a trial court to determine if the parties possess evidence requiring the weighing process of a trial. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1013.)
A defendant may move for summary judgment if it is contended that the action has no merit. (§ 437c, subd. (a).) A defendant meets its initial burden of showing a cause of action is without merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (§ 437c, subd. (p)(2).) Once the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aquilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) “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).)
On appeal from a summary judgment, our task is to independently determine whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) “We independently review the parties’ papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) In so doing, we view the evidence in the light most favorable to the party opposing the motion; we liberally construe the opposing party’s evidence, strictly construe the moving party’s evidence, and resolve all doubts in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
II. Trial Court Correctly Granted Summary Judgment
We now consider whether defendant met its prima facie burden as the moving party. Defendant’s motion for summary judgment was made on the ground, among others, that defendant’s performance of the surgery was within the standard of care. “In professional malpractice cases, 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. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) “‘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.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
Of course, the moving party’s expert opinion must be competent as evidence. Expert opinions are worth no more than the reasons and factual data upon which they are based. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) An expert opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value. (Kelley v. Trunk, supra, 66 Cal.App.4th at pp. 523-525; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.)
Here, in attempting to show that defendant performed the surgical procedure within the standard of care, defendant produced the declaration of his medical expert, Dr. Zarem. Attached to Dr. Zarem’s declaration was his curriculum vitae, establishing his extensive education, training and experience in the field of plastic surgery. The declaration recited that as a foundation for his opinions, he reviewed the deposition of plaintiff and the medical records pertaining to plaintiff’s surgery and care, including pre- and post-operative photographs of plaintiff. The declaration noted the standard risks associated with the breast augmentation surgery undertaken by plaintiff, and detailed the thorough process by which defendant informed plaintiff of those risks and obtained her informed consent before proceeding with the surgery. Plaintiff’s particular complaints included mild breast pain, some degree of post-operative asymmetry in her breasts and a general dissatisfaction over the appearance of her breasts. According to Dr. Zarem, these results were among the inherent risks of the surgery to which plaintiff consented and did not indicate the standard of care was not met. Dr. Zarem gave a reasoned explanation for why some degree of asymmetry is to be expected and noted the photographs “do not reflect an unacceptable outcome in terms of cosmetic appearance.” Dr. Zarem then stated his medical opinion, based on all the records reviewed by him, that defendant performed the surgery within the applicable standard of care because “his intra operative management of the patient was appropriate, including the placement of the implants, technique and suturing, taking into account the patient’s presenting signs, symptoms and complaints, her muscle and her body structure.”
We conclude from our consideration of the above expert declaration that it was adequate as prima facie evidence that defendant met the standard of care. No evidentiary objection was interposed as to the declaration. (§ 437c, subd. (b)(5) [evidentiary objections not made at hearing are waived]; § 437c, subd. (c) [trial court considers all the evidence set forth in the papers “except that to which objections have been made and sustained by the court”].) Dr. Zarem considered plaintiff’s deposition and medical records and then provided a reasoned and detailed medical explanation for his opinion based on such data. In submitting this expert declaration, defendant met his burden as the moving party, and the burden shifted to plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aquilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) Because plaintiff failed to produce any evidence, summary judgment was appropriate.
Plaintiff’s counsel remarked at the summary judgment hearing that Dr. Zarem’s opinion was based on records and testimony, but not on a personal examination of the patient. Counsel’s remark was not presented as an evidentiary objection to the admissibility of the evidence. No such evidentiary objection was made. In any event, no authority or legal argument is provided to indicate that a personal examination of an individual is necessary to forming a valid expert opinion as to a surgery performed on that individual, therefore we disregard counsel’s comment. (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43 [contentions unsupported by argument or citation to authority may be deemed to be without foundation and abandoned].) The absence of any intelligible evidentiary objection by plaintiff waives any grounds for objection. (§ 437c, subds. (b)(5), (c); Weil v. Federal Kemper Life Assurance Co. (1994) 7 Cal.4th 125, 149, fn. 9 [hearsay statements considered in absence of objection].)
The same is true of the statute of limitations defense. Defendant presented evidence, including plaintiff’s deposition testimony and other records, reflecting that by no later than August 30, 2005, plaintiff believed she had been harmed from the surgery (i.e., she felt something was wrong) and her trust in defendant was gone, which caused her to cancel the revision surgery. The statute of limitation in a medical malpractice action is three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (§ 340.5.) All that is necessary for the statute to begin running is for the plaintiff to have formed a suspicion that someone has done something wrong to cause the injury. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1296-1298.) Defendant’s showing was clearly sufficient to prima facie establish that the one-year period began running on August 30, 2005, which was more than one year before plaintiff’s complaint was filed. Hence, the burden shifted to plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).) Because plaintiff failed to produce any evidence in opposition, summary judgment was appropriate on this further ground.
Even though one ground would have been enough, we have explained why summary judgment was proper on two distinct grounds. It is unnecessary to discuss the third ground upon which summary judgment was granted (i.e., causation) as that would be superfluous.
Because the summary judgment statute was followed by defendant, we reject plaintiff’s contention that her right to a jury trial was violated. “[T]here is ‘nothing in the summary judgment procedure [that] is inherently unconstitutional. [Citations.]’ [Citation.] But technical compliance with the procedures of [] section 437c is required to ensure there is no infringement of a litigant’s hallowed right to have a dispute settled by a jury of his or her peers.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) Where, as here, the statutory procedures are complied with, a grant of summary judgment does not deny a right to a jury trial but merely recognizes that a jury trial was unnecessary. This important purpose of the summary judgment mechanism bears repeating: “The purpose of the law of summary judgment is to provide 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., supra, 25 Cal.4th at p. 843.)
As this case highlights, when a defendant who moves for summary judgment makes a prima facie showing that an element of the plaintiff’s case cannot be established or that an affirmative defense exists thereto, it is incumbent upon the plaintiff to come forward with evidence sufficient to create a triable issue of fact, otherwise the motion will be granted. Mere argument or vague statements by counsel in opposition to the motion are insufficient. “‘An issue of fact can only be created by a conflict of evidence.… [A]n issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions” [citation], or mere possibilities [citation],’ [citation], or by allegations in the complaint. [Citation.]” (Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1014.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant.
WE CONCUR: Levy, Acting P.J., Cornell, J.