Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. CGC-06-456645
Reardon, J.
In a medical malpractice action filed by appellant Miguel Vivas and others, the trial court granted summary adjudication to respondent the Regents of the University of California (Regents) on the negligence and loss of consortium causes of action. Vivas voluntarily dismissed the remaining fraud cause of action. They now appeal the subsequent judgment, contending that the trial court erred by failing to grant a motion for continuance of the hearing on the motion for summary adjudication and by granting the unopposed motion for summary adjudication. We affirm the judgment.
The appellants’ opening brief identifies plaintiffs Asusena Vivas, Marisela Pedroza and Ruben Pedroza as members of the decedent’s family, but the record on appeal does not contain any evidence of their relationship to the decedent. For example, neither the complaint nor the first amended complaint alleged a relationship with the decedent other than for her spouse Miguel Vivas.
We were not assisted in our preparation of this statement of facts by references to a reporter’s transcript that differ from the pagination of that we have before us on appeal.
In October 2005, sixty-four-year-old Micaela Vivas had surgery at the University of California San Francisco Medical Center (UCSFMC) to obtain aortic and mitral valve replacements. Defendant Dr. Scot Merrick was the operating surgeon, assisted by defendant Dr. Jasleen Kukreja. Defendant nurse Gina Intinarelli communicated with Micaela Vivas’s family during the surgery. During the procedure, a mitral valve was inserted backwards, requiring replacement with a new valve. The wall of Micaela Vivas’s heart also ruptured, resulting in her death.
In October 2006, the decedent’s husband—appellant Miguel Vivas—and others filed a medical malpractice action against the Regents. The UCSFMC, Drs. Merrick and Kukreja and Nurse Intinarelli were named as additional defendants. The complaint alleged causes of action for wrongful death/negligence, loss of consortium and fraud against all defendants. The Regents answered the complaint by early 2007.
The Regents noticed depositions of the plaintiffs in early November 2006, to take place later that month. The depositions did not occur on the noticed date and time. In April 2007, counsel for Vivas told the Regents’ counsel that he intended to voluntarily dismiss the fraud cause of action. Vivas’s counsel also informed defense counsel of his intent to voluntarily dismiss the individual defendants. Difficulties arose over the scheduling of the plaintiffs’ depositions. Not until May were depositions of two of the four plaintiffs even begun. Further attempts to obtain plaintiffs’ depositions were noticed for June, but were cancelled by Vivas’s counsel.
All subsequent dates refer to the 2007 calendar year unless otherwise indicated.
On June 1, the Regents alone—not the individual defendants—moved for summary judgment on the wrongful death/negligence and loss of consortium causes of action, arguing that Vivas could prove neither a breach of the standard of care nor causation. The motion noticed a hearing date of August 17, to give Vivas sufficient time to prepare opposition. (See Code Civ. Proc., § 437c, subd. (a) (section 437c).) The Regents supported the motion with a separate statement of undisputed material facts and a declaration from a cardiovascular surgeon. The surgeon stated that the rupture in the decedent’s heart was a known risk of valve replacement surgery. He stated that this complication can occur in the absence of negligence and he found no evidence suggesting that the rupture occurred as a result of negligence or failure to meet the standard of care. He also concluded that the fact that the mitral valve had been initially inverted was inconsequential to the outcome.
By mid-July—a month and a half after the motion for summary judgment had been filed—discovery was not yet completed. Depositions had not been completed for the four plaintiffs, although two had been started. None of the individual defendants had been deposed. The delays in discovery were the result of scheduling difficulties attributed to Vivas’s counsel.
On July 17, the Regents—with Vivas’s approval—sought a continuance of a settlement conference then set for July 20. Three reasons were cited for this continuance—the possibility that the valve manufacturer would be added as a defendant, the failure to complete sufficient discovery, and the pending motion for summary judgment which could prove dispositive of the case. The trial court granted the continuance on July 18.
On July 26, Vivas made an ex parte application for a continuance of the trial and all trial-related deadlines. The Regents’ counsel stipulated to the request for continuance. Counsel for Vivas supported this request with a declaration expressing his intent to amend the complaint to add the valve manufacturer as a new defendant. The same day, the trial court continued the September trial date to March 2008.
On August 3, Vivas opposed the motion for summary judgment by means of a declaration from Vivas’s counsel and a memorandum of points and authorities. The opposition was not supported by any declaration from any medical expert, nor any separate statement of material facts or other evidence from the defendants. In his declaration, Vivas’s counsel stated that he deemed further discovery to be imprudent until another defendant was brought into the case. He asserted that due to no fault on his part or the part of his clients, depositions of the individual defendants had not then been obtained. He asked for a continuance to allow further discovery after the new defendant was added into the case. On August 7, Vivas’s counsel noticed the depositions of the individual defendants, set for the first week of September.
On August 10, the Regents’ counsel opposed the request for continuance of the motion for summary judgment. She attributed the delay in obtaining depositions from the parties to delays caused by Vivas’s counsel. She also asserted that the declaration of Vivas’s counsel was insufficient to warrant a mandatory continuance because it failed to specify what evidence Vivas needed, why they thought that evidence might exist, and how they believed that evidence would counter the motion for summary judgment. She argued that because of the multiple delays caused by Vivas’s counsel in this case, his declaration might warrant sanctions as having been filed in bad faith or solely for purposes of delay. (§ 437c, subds. (h), (j).) She asked that the motion for summary judgment be granted.
In a declaration filed by the Regents’ counsel, she also explained that the motion for summary judgment did not address the fraud cause of action because Vivas’s counsel had repeatedly assured the Regents that this claim would be voluntarily dismissed. The motion also did not address issues related to the individual defendants, relying on the statements of Vivas’s counsel that those parties would be dismissed from the case, although no dismissal had been filed. In fact, neither promised action had been undertaken by Vivas’s counsel by the August 17 hearing date on the motion, at which time the trial court deemed the motion for summary judgment to be a motion for summary adjudication on the nonfraud causes of action.
On August 17, after hearing, the trial court granted the motion for summary adjudication on the nonfraud causes of action because the Regents offered unrebutted evidence that decedent’s injury was not the result of negligence. It denied Vivas’s request for continuance, ruling that the declaration supporting this request did not indicate what facts Vivas reasonably expected to obtain or how those facts could reasonably defeat a motion for summary adjudication. The trial court also found that Vivas had no excusable reason why it had not sought discovery before opposition to the motion for summary adjudication was due, characterizing Vivas’s discovery plan as “open ended.”
On September 4, all causes of action against the three individual defendants were dismissed with prejudice, at Vivas’s request. The Regents moved for judgment on the pleadings on the fraud cause of action on October 9. The trial court issued a tentative ruling granting the motion. After Vivas failed to give notice of any intent to contest the tentative ruling, the trial court granted the motion on October 31, giving Vivas leave to amend to allege damages suffered in reliance on the alleged fraud.
On November 9, Vivas filed a first amended complaint alleging a cause of action for fraud against the Regents, the UCSFMC, and Drs. Merrick and Kukreja. The individual defendants and the UCSFMC were served with notice of the first amended complaint and told that they were being sued.
On November 20, the individual defendants appeared specially, moving to quash service of summons, based on a lack of personal jurisdiction and subject matter jurisdiction because the action against them had been dismissed with prejudice. Vivas did not oppose the motion, stating that the individual defendants and the UCSFMC had been inadvertently served with the first amended complaint. Ultimately, the trial court granted the motion to quash.
On November 20, the trial court filed an order granting summary adjudication on the wrongful death and loss of consortium causes of action. An order granting judgment on the pleadings was filed on November 30.
By this stage of the trial court proceedings, the only remaining cause of action was the fraud claim alleged against the Regents. On November 20, the Regents also moved to strike two aspects of the first amended complaint. After the motion was granted in part and denied in part, the Regents filed an answer to the first amended complaint in March 2008. That same month, Vivas agreed to voluntarily dismiss the fraud cause of action against the Regents with prejudice, in order to challenge the trial court’s summary adjudication ruling on appeal. As all causes of action had been finally determined, the trial court entered final judgment for the Regents in the matter in April 2008.
II. CONTINUANCE
A. Mandatory Continuance
Vivas contends that the trial court erred by refusing to grant him a continuance. They first argue that the continuance was mandatory, to allow them sufficient time to complete discovery. If it appears from the affidavits submitted in opposition to a motion for summary adjudication that facts essential to justify opposition may exist but cannot—for specified reasons—be presented at that time, then the trial court must deny the motion or order a continuance to allow further discovery in the case. (§ 437c, subd. (h).)
The purpose of the affidavit required by subdivision (h) of section 437c is to inform the trial court of outstanding discovery necessary to resist the motion for summary judgment. To be entitled to a continuance under this provision, the opponent of the motion for summary judgment must show that its proposed discovery would lead to facts essential to justify opposition. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) It is insufficient to indicate merely that more discovery or investigation is needed. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397-398; Roth v. Rhodes, supra, 25 Cal.App.4th at p. 548.) The affidavit must show that the facts to be obtained are essential to oppose the motion, that there is reason to believe those facts exist, and the reasons why additional time is needed to obtain them. (California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305.) The declaration filed by Vivas’s counsel stated little more than that further discovery would be imprudent before another defendant was added to the case and that Vivas’s counsel had not deposed any of the medical personnel involved in the surgery. This declaration did not satisfy the statutory prerequisites to trigger a mandatory continuance.
Counsel’s declaration did not explain why no medical personnel depositions had been taken, relying instead on the Regents’ failure to complete depositions of the Vivas plaintiffs. We note that Vivas’s counsel did not notice the depositions of the surgeon and his assistants until four days after counsel submitted his declaration in opposition to the motion for summary judgment.
We find that the trial court’s denial of a mandatory continuance was proper for a second reason. A trial court is not required to grant a continuance when the proposed discovery focuses on issues beyond the scope of those framed by the pleadings. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023; see American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1279-1280.) In our case, Vivas’s counsel sought a continuance in order to have time to add the valve manufacturer as a defendant. The summary judgment motion was addressed to the original complaint, which did not name a valve manufacturer as a defendant. While the motion was pending, Vivas’s counsel did not file an amended complaint naming this party as a defendant, either. Thus, the request for continuance was not pertinent to the issues before the trial court on the Regents’ motion for summary adjudication challenging the original complaint.
The declaration of Vivas’s counsel fell far short of the required affidavit showing that a continuance was necessary to obtain facts essential to justify opposition to the motion for summary adjudication. (See, e.g., California Automobile Ins. Co. v. Hogan, supra, 112 Cal.App.4th at p. 1305.) Thus, Vivas did not show that discovery that could not have been accomplished earlier was necessary to oppose the motion for summary adjudication. (See American Continental Ins. Co. v. C & Z Timber Co., supra, 195 Cal.App.3d at p. 1280.) In these circumstances, the trial court did not abuse its discretion by denying the motion for continuance. (See California Automobile Ins. Co. v. Hogan, supra, 112 Cal.App.4that p. 1306.)
Section 437c, subdivision (h) specifically requires a showing to be made by affidavit. A showing made in a memorandum of points and authorities is insufficient to support a motion for a mandatory continuance. (American Continental Ins. Co. v. C & Z Timber Co., supra, 195 Cal.App.3d at p. 1280.)
B. Abuse of Discretion
As Vivas did not meet the conditions of subdivision (h) of section 437c, a continuance was not mandatory. (See Scott v. CIBA Vision Corp., supra, 38 Cal.App.4th at p. 326.) Alternatively, Vivas contends that the trial court abused its discretion by not granting the motion for continuance. If a continuance is not mandatory pursuant to subdivision (h) of section 437c, then we review a trial court’s denial of a request for a continuance of a hearing on a motion for summary adjudication for an abuse of discretion. (See Scott v. CIBA Vision Corp., supra, 38 Cal.App.4th at p. 326 [motion for summary judgment].) We defer to the trial court’s authority, finding an abuse of discretion only if the trial court’s decision exceeds the bounds of reason. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881.)
On the record before us, we find no abuse of discretion. Vivas’s counsel was not diligent in conducting discovery, either before the Regents’ motion was filed on June 1 or during the two-month period before Vivas’s opposition was due. (See § 437c, subd. (b)(2).) Even limiting our inquiry to the period before the August 17 ruling on the motion for summary adjudication, as we must, the record suggests that Vivas’s counsel displayed a troubling lack of attention to his clients’ case. Under the circumstances, we conclude that the trial court acted well within its discretion in denying Vivas’s motion for continuance of the hearing on the motion for summary adjudication. (See, e.g., Scott v. CIBA Vision Corp., supra, 38 Cal.App.4th at p. 326.)
Vivas’s counsel argued below that he could not provide expert testimony in opposition to the Regents’ expert because his expert could not give an opinion about the standard of care based on operative reports that he deemed inadequately informative. However, this lack of evidence did not preclude the filing of an expert declaration in opposition to the motion for summary adjudication opining that an opinion about the standard of care could not be given in the absence of additional information. That expert declaration would arguably create a triable issue of fact. Instead, Vivas’s counsel relied on his own declaration merely arguing that more information was needed to evaluate the negligence claim. Counsel’s declaration was insufficient to rebut the declaration offered by the Regents’ expert. (See pt. III., post.)
III. UNOPPOSED MOTION
Finally, Vivas contends that the trial court also erred by granting the Regents’ motion for summary adjudication, for various reasons. We need only address one of them. When a medical expert submits a declaration in support of a motion for summary judgment, the party opposing summary judgment must counter that declaration with one from that party’s own expert. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985; see Selden v. Dinner (1993) 17 Cal.App.4th 166, 173.) Vivas did not oppose the motion for summary judgment by submitting any expert evidence to counter the Regents’ expert’s conclusion that no negligence occurred causing the decedent’s death. In such circumstances, the Regents established a defense to the negligence and loss of consortium claims as a matter of law. As there was then no triable issue of material fact, the Regents were entitled to summary judgment on these causes of action. (See § 437c, subd. (c).)
In the reply brief, Vivas cites a First District case in support of their claim that even if they failed to provide an expert declaration to counter that offered by the Regents, an expert declaration that does not make a prima facie showing of a triable issue of material fact cannot support a summary adjudication order. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) The cited case is distinguishable from Vivas’s case for two reasons. First, unlike the case before us, the Kelley opponent of the motion for summary judgment filed an opposing expert declaration. (See id. at pp. 522, 524.) Second, the Kelley declaration was conclusory and failed to explain the basis for the expert’s opinion, while the Regents’ medical expert’s declaration does not suffer from these defects. (See id. at pp. 521, 523-525.)
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.
For convenience, all appellants are referred to collectively as Vivas.