Opinion
NOT TO BE PUBLISHED
Appeal from an order of dismissal and an appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC11140, William M. Monroe, Judge.
Burkenroad Law Offices and David Burkenroad for Plaintiffs and Appellants.
Rebacki, McAndrews & Kjar and Sarah Houshiar for Defendant and Respondent Chang Woo Rhee.
LaFollette, Johnson, DeHaas, Fesler & Ames, Bradley J. McGirr, Brian M. Meadows and Victor Russame for Defendant and Respondent Daniel T. Stein.
OPINION
SILLS, P. J.
This appeal involves two separate sets of claims against two separate physician defendants sued for two entirely separate incidents. Since we affirm a judgment dismissing one physician from the action and dismiss the appeal from an order dismissing the other physician from the action, we may safely pass over any issues of improper joinder.
I. The Stein Appeal
We will start with the appeal involving Dr. Daniel Stein first, because that appeal is based on facts earlier in time (2003). All facts are taken from the second amended complaint, which is the last operative complaint filed by plaintiff Harriett Daniels Thomas. It should be noted, though, that the original complaint was filed on October 6, 2005.
Plaintiff Thomas sued Dr. Stein alleging that, on or about January 1, 2003, she “was presented” to Dr. Stein (and others, not in this case) for treatment for “pain and possible injury” to Thomas’s “right shoulder and right leg and foot.” Her complaint alleged that because of Dr. Stein’s failure to properly diagnose the nature of her injuries, particularly a “torn right rotator cuff, right leg and foot nerve damage and pinched nerves in her back,” she eventually underwent “needless” surgeries, and has undergone, since 2003, needless suffering and pain and “may have permanent damage to the nerves in her back, shoulder, leg and foot.” The possible tie-in with the second physician is the inference that because of Dr. Stein’s allegedly negligent treatment, one of the doctor’s visits that she was later thereby required to endure involved involving “discriminatory conduct” by the other physician defendant, Dr. Rhee (discussed below).
In October 2006 -- that is, about a year from the filing of the original complaint -- Dr. Stein filed a motion for summary judgment, based on two things: First, he proffered evidence in the form of an expert’s declaration (from Dr. Alexander Tischler) that his treatment did not fall below the standard of care. Two, plaintiff’s claim was in any event barred by the one-year-after-discovery provision of section 340.5 of the Code of Civil Procedure.
Plaintiff Thomas filed no opposition at all to Dr. Stein’s motion for summary judgment, and neither she nor her attorney showed up for the January 16, 2007, hearing on the motion. All that was done was the filing of an objection and request for continuance of the hearing. The continuance request was based on the fact that Thomas had “retained Dr. Scoot Baden who is reviewing the medical records and who will prepare a declaration regarding the material issues relating to the causes of action in plaintiff’s complaint,” but “Dr. Baden has advised that he needs additional time in which to review the complete medical records for Ms. Daniels Thomas in order to give a complete and accurate opinion concerning the medical care or lack thereof provided by Dr. Stein.” There was nothing more specific in the declaration for a continuance than the language we have just quoted. Indeed, we have, in this paragraph, quoted literally all the substantive evidence supporting the continuance request.
The motion for summary judgment was granted on January 16, 2007, based both on the merits (i.e., the only evidence was that Dr. Stein was within the standard of care) and on the statute of limitations. A formal judgment was filed on January 30, 2007, notice of entry of that judgment was mailed to Thomas’s attorney on February 27, 2007, and Thomas filed a notice of appeal from the judgment on April 3, 2007.
So this appeal is timely. But not meritorious. No facts essential to justify opposition to the summary judgment motion were provided in the declaration supporting the continuance request. The mere fact that a physician expert may have been retained and is in the process of reviewing medical records does not meet the standards for a mandated continuance under subdivision (h) of section 437c. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 251-253.)
However, even if Thomas’s attorney’s declaration did state sufficient facts to justify a continuance on the merits of her malpractice case, the declaration did not even attempt to address why Thomas had no facts that would refute Dr. Stein’s statute of limitations defense. We note: Thomas and her attorney were in sole possession of any facts that would have refuted the statute of limitations defense, yet they filed nothing in the trial court on the matter. The trial court thus was clearly correct in granting the motion for summary judgment.
II. The Rhee Appeal
Thomas’s claims against Dr. Rhee derive from an incident on or about March 24, 2005. According to the second amended complaint, Thomas was scheduled for surgery at Fountain Valley Outpatient Surgical Center. The second amended complaint does not say what kind of surgery, though a proposed third amended complaint hints that it was foot surgery. On that date Dr. Rhee allegedly refused to provide medical services to Thomas “based solely on her race, sex, weight, ancestry, disability and medical condition.” Specifically, Dr. Rhee “refused to administer anaesthesia to her based on her race and disability status.” The second amended complaint provides no facts on which to support the claim of an sort of motivation based on race except for an allegation that Dr. Rhee (and other, anonymous doctors) “made derogatory comments concerning plaintiff’s race, weight, and medical condition causing her great mental anguish, pain, suffering and damages.” (The complaint had alleged that Thomas “is an African-American woman, slightly overweight and physically disabled.”) The nature of the alleged, derogatory comments made by Dr. Rhee are not specified in the complaint.
Dr. Rhee filed a demurrer to the second amended complaint, which was sustained without leave to amend in May 2006. While there was a notice or ruling and an order granting the demurrer, no actual order of dismissal would be filed until January 2007. The reason for the delay appears to be that in the post-demurrer period (post May 2006), Thomas’s attorney maintained that the case was still viable as to Dr. Rhee. (Thomas’s attorney mistakenly thought that Dr. Rhee was among those named in the cause of action for medical malpractice in the complaint alleged against Dr. Stein.) His efforts regarding Dr. Rhee culminated in an unsuccessful attempt in the latter half of 2006 to file a third amended complaint. That attempt in turn prompted a motion, in early November 2006, to dismiss Dr. Rhee from the case with prejudice.
In that complaint, Thomas attempts to restate her claims against Dr. Rhee as (1) invasion of privacy because he disclosed to (unspecified) “general public and third-parties” Thomas’ medical history, (2) intentional infliction of emotional distress, based on Dr. Rhee’s alleged derogatory comments, and (3) intentional interference with her contractual relationship with Dr. Stein and Blue Cross by “derogatory and demeaning comments.” None of the comments are specified other than a statement that Thomas was a “fly on a cannon,” which allegedly was “referencing her size and race.”
The motion to dismiss Dr. Rhee was granted on January 16, 2007, and that day the court finally filed an order actually dismissing Dr. Rhee from the case. The order states that Dr. Rhee “is hereby dismissed with prejudice from the action.” A copy of the order was served on Thomas’ attorney on January 17, 2007.
Thomas included the order of dismissal obtained by Dr. Rhee in the same notice of appeal which appealed from the summary judgment obtained by Dr. Stein. It is a single document, which attempts to do double-duty by appealing from the judgment after the order granting Dr. Stein’s summary judgment motion (which, as noted above, was timely) and from the “grant of defendant John Rhee, M.D.’s motion to dismiss.” As we have noted, that notice of appeal was filed April 3, 2007.
As should now be obvious, the appeal from the order of dismissal obtained by Dr. Rhee is not timely. Thomas’s attorney was sent a copy of the order dismissing Dr. Rhee on January 17, 2007, and the notice of appeal was not filed until more than 70 days later. An order of dismissal is the equivalent of an appealable judgment under section 581d of the Code of Civil Procedure. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 270, fn. 1.) There being no motion for new trial or to vacate as might otherwise extend time to file a notice of appeal under rule 8.108 of the California Rules of Court, the normal 60 days from the date a party sends a copy of the appealable judgment to the appellant under rule 8.104(a)(2) controls. The deadline was 60 days from January 17, 2007, and Thomas missed it.
III. Disposition
The judgment of dismissal obtained by Dr. Stein is affirmed. The appeal from the order of dismissal obtained by Dr. Rhee is dismissed. Both respondents are to recover their costs on appeal.
WE CONCUR: O’LEARY, J., ARONSON, J.