Opinion
A149662 A150537 A150538
07-10-2018
EDWARD PLUMMER, JR., Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14738005)
Gavin Plummer was less than two years old when he was diagnosed with Wilms' tumor, a cancer of the kidneys. The disease progressed despite surgery and multiple courses of chemotherapy and radiation therapy, and Gavin died when he was just four and a half. Representing themselves, Gavin's father and grandfather (Plaintiffs) sued Kaiser Foundation Health Plan, Inc., and Kaiser Foundation Hospitals (collectively Kaiser), where Gavin was diagnosed and treated, alleging causes of action associated with the treatment Gavin received. Kaiser moved for summary judgment. The trial court denied Plaintiffs' request for a continuance under Code of Civil Procedure section 437c, subdivision (h), granted Kaiser's motion, and entered judgment for Kaiser.
Statutory references are to the Code of Civil Procedure unless otherwise stated.
In these consolidated appeals Gavin's grandfather, Edward Plummer, Jr. (Grandfather) challenges the judgment, including the denial of the request for continuance; an amended judgment specifying the amount to be recovered by Kaiser as costs; and a post judgment order denying Grandfather's motion for leave to prepare a settled statement of the summary judgment hearing. We conclude that the trial court erred by denying Plaintiffs' request to continue the summary judgment hearing, and therefore we vacate the judgments and post judgment order without reaching the remaining issues.
Gavin's mother did not join the suit brought by Gavin's father and grandfather. Gavin's father is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs' complaint alleges four causes of action against Kaiser: wrongful death, medical negligence, abandonment of patient, and breach of contract. In alleging wrongful death and medical negligence, Plaintiffs claim that Kaiser was negligent in several respects concerning Gavin's treatment and that Kaiser's negligence caused or contributed to Gavin's death. In alleging abandonment of patient, Plaintiffs claim that when Kaiser referred Gavin to hospice care, Kaiser withdrew from Gavin's care and treatment without providing enough notice for another medical provider to be obtained. In alleging breach of contract, Plaintiffs claim to be third party beneficiaries to the contract between Kaiser and Gavin's mother under which Gavin's health care was provided, and claim Kaiser breached that contract by denying a request for a second opinion and a request for a referral to a non-Kaiser provider. A. Kaiser's Motion for Summary Judgment
In support of its motion for summary judgment, Kaiser submitted about 100 pages of Gavin's medical records along with declarations, including one from Dr. Leo Mascarenhas. Dr. Mascarenhas stated he was licensed to practice medicine in California, had been board certified in Pediatrics since 1995, when he was first licensed, and board certified in Pediatric Hematology/Oncology since 1998, and had encountered and treated numerous cases of Wilms' tumor. He stated that he reviewed over 13,000 pages of Gavin's medical records; based on that review and his education and experience as a specialist in pediatric oncology and hematology, he opined that the evaluation, care and treatment provided to Gavin in relation to his Wilms' tumor diagnosis was at all times appropriate, timely, and consistent with the standard of care.
In its motion for summary judgment Kaiser argued that Grandfather lacked standing to bring the wrongful death claim; that Grandfather's medical negligence and abandonment of patient claims failed as a result of Grandfather's lack of standing to sue under a wrongful death theory and that in any event there could be no dispute that Kaiser's treatment of Gavin was at all times within the standard of care; that Gavin's father's wrongful death, medical negligence and abandonment claims failed because Gavin's treatment was within the standard of care and that Plaintiffs were not third party beneficiaries to the agreement under which Gavin received treatment. B. Opposition and Reply
Plaintiffs argued that there were triable issues of fact and that at a minimum they should be granted a continuance under section 437c, subdivision (h), to conduct additional discovery.
In disputing Kaiser's proffered material facts, Plaintiffs submitted several documents, but primarily relied on a declaration from Grandfather. Based on his own experience as a cancer patient, Grandfather expressed opinions about Gavin's health and the care Gavin received. Grandfather further stated that he had worked at the California Department of Health Care Services for about 20 years and had reviewed thousands of medical records in the course of his work, and reported, "In reviewing the medical records of Gavin Plummer I found what in said practice is known as discrepancies." The declaration does not describe the types of records Grandfather reviewed in his work or the purpose of his reviews, nor does it identify any discrepancies in Gavin's records. Notably, Plaintiffs did not present a declaration from a medical expert; instead, they invoked the doctrine of res ipsa loquitur.
In support of their request for a continuance, Plaintiffs submitted a copy of Kaiser Foundation Hospitals' response to Grandfather's request for production of documents, a few pages of correspondence between Grandfather and Kaiser's counsel, and Grandfather's declaration, which said the following about discovery: "18. The defendants have refused to respect my efforts at discovery. [¶] 19. I have served interrogatories, admission request and request for production. They have produced nothing."
With their reply brief, Kaiser submitted objections to most of Plaintiffs' evidence, all of which were sustained. Thus the trial court excluded from evidence Grandfather's opinions about the care Gavin received and his claim that there were discrepancies in Kaiser's medical records. Kaiser did not object to the statements in Grandfather's declaration about Kaiser's responses to discovery, but objected to Plaintiffs' submission of Kaiser's written response to Grandfather's request for production and to six pages of correspondence between Grandfather and Kaiser's counsel, all of which the trial court excluded from evidence as irrelevant. C. Ruling
The trial court (Hon. Delbert C. Gee) published a tentative ruling that Plaintiffs contested. After a hearing, which was not reported by a court reporter, the court affirmed the tentative ruling, sustaining Kaiser's objections to evidence and granting Kaiser's motion in its entirety.
In a subsequent brief to the trial court, Grandfather represents that there was "significant argument" on the issue of discovery at the hearing. In his opening brief on appeal, Grandfather represents that he advised the trial court that Kaiser was "not forthcoming" with all the evidence and had not provided Plaintiffs with all Gavin's medical records. He further represents that at the hearing Kaiser's counsel "advised the court that the plaintiffs were not entitled to have the records," and that the basis for counsel's statement was nothing more than her claim that she had litigated many similar cases and knew that Plaintiffs "are not suppose[d] to have the records."
The court denied Plaintiffs' request for a continuance: "Plaintiffs fail to adequately demonstrate that facts essential to oppose this Motion may exist and the reason why any such facts have not been presented with the opposition. The statement in Plaintiff Edward Plummer's Declaration (at paragraphs 18-19) that Defendants 'have refused to respect my efforts at discovery' and have 'produced nothing' is factually unsupported, overly vague, and conclusory, and therefore insufficient to support Plaintiffs' request for a continuance."
The court ruled that Grandfather lacked standing to bring a claim for wrongful death because it was undisputed that Gavin has living parents. With respect to the merits of Plaintiff's causes of action, the court pointed out that the gravamen of all Plaintiffs' claims was medical malpractice, and found that it was undisputed that at all times Kaiser complied with the applicable standard of care, as reflected in the Mascarenhas declaration. The court noted that although Plaintiffs purported to dispute some of Defendants' facts, they failed to cite admissible evidence to support the existence of any dispute, and the court rejected Plaintiffs' invocation of res ipsa loquitur, finding that "[t]his is emphatically not a case where the conduct required by the applicable standard of care is within the common knowledge of a layperson." As to Plaintiffs' cause of action for breach of contract, the court concluded that Plaintiffs were not third-party beneficiaries to the agreement under which care was provided to Gavin, and that in any event, the undisputed facts demonstrated that there was no breach.
Judgment was entered for Kaiser, and Grandfather timely appealed (appeal A149662). D. Further Proceedings in the Trial Court
Although Kaiser had filed a memorandum of costs in the trial court before the judgment was entered, the judgment stated only that Kaiser would recover costs to the extent permitted by statute. The trial court (Hon. Sandra K. Bean) subsequently issued an amended judgment that specified the amount Kaiser was to recover. Grandfather timely appealed (appeal A150537).
On appeal Grandfather does not challenge the amount of costs awarded; instead, he claims that the trial court erred in granting Kaiser's motion and therefore should not have awarded Kaiser any costs.
Separately, Grandfather filed a motion in the trial court for leave to prepare a settled statement of the hearing on Kaiser's motion for summary judgment for use in his appeal of the judgment. Kaiser opposed the motion, arguing that oral proceedings are unnecessary to an appellate court's de novo review of the issues on summary judgment. In making this argument, Kaiser disregarded that the denial of Plaintiffs' request for a continuance is appealable upon review of the judgment and is reviewed for abuse of discretion. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527 (Freeman) [failure to grant continuance reviewable on appeal from judgment]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey) [standard of review for denial of continuance under § 437c, subd. (h)].)
Nevertheless, Judge Bean agreed with Kaiser and issued an order denying the motion. Grandfather appealed from this order (appeal A150538).
We consolidated Grandfather's appeals for purposes of briefing, oral argument (which was subsequently waived), and decision, in response to Grandfather's unopposed motion that we do so.
DISCUSSION
A. Legal Standard
Because summary judgment "deprives the losing party of trial on the merits," (Bunzel v. American Academy of Orthopaedic Surgeons (1980) 107 Cal.App.3d 165, 169), section 437c, subdivision (h), provides, "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or may make any other order as may be just." (Emphasis added.) The provision was adopted " ' "[t]o mitigate summary judgment's harshness," . . . [Citations]' [citation] 'for an opposing party who has not had an opportunity to marshal the evidence[.]' " (Cooksey, supra, 123 Cal.App.4th at p. 253, quoting Frazee v. Seely (2002) 95 Cal.App.4th 627, 634, and Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770.)
"A declaration in support of a request for a continuance under section 437c, subdivision (h) must show: '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]' (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) . . . 'It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist." ' (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)" (Cooksey, supra, 123 Cal.App.4th at p. 254.) In the absence of a declaration requiring a continuance, we review a trial court's denial of a request for a continuance for abuse of discretion. (Ibid.) B. Analysis
Grandfather argues that the trial court abused its discretion in denying Plaintiffs' request for a continuance. Kaiser simply declines to address Grandfather's argument, claiming that the issue is moot, outside our review, and not the subject of Grandfather's appeal. Kaiser is plainly incorrect. Grandfather raises the issue in his opening brief, and as we have stated, the denial of a continuance is appealable upon review of the judgment. (Freeman, supra, 192 Cal.App.4th at p. 527.) We therefore proceed to address the issue on the merits.
The essence of plaintiffs' written request for a continuance was that Kaiser had "produced nothing" in response to Grandfather's interrogatories, requests for admission and requests for production. In response, Kaiser came forward with no declaration refuting Grandfather's statement. Nor did Kaiser cite any legal authority. Kaiser simply asserted in a two-paragraph argument in its reply brief that plaintiffs had never filed a discovery motion and had never met and conferred, even though Kaiser would have "welcomed" that process. Curiously, at the same time that Kaiser argued that the request for continuance lacked "good cause," it tried to keep the court from addressing it at all, prefacing the second paragraph of its argument this way: "While the issue is not before the Court, it is worth noting that Plaintiffs' request for an extension relates to Kaiser's refusal to produce the protected health information requested by decedent's grandfather absent a HIPAA-compliant authorization signed by decedent's parents. As Plaintiffs have not provided such an authorization to counsel, despite Kaiser's numerous requests for one, the documents containing the patient's protected health information have not, and will not, be produced." (Emphasis added.) Again, none of this was supported by a declaration or by legal authority. Moreover, as we have noted, Kaiser successfully objected on the grounds of relevance to the trial court considering its response to Grandfather's request for production and a few pages of meet and confer correspondence.
In our view, the issue of whether Kaiser had "produced nothing" was the issue placed squarely before the court in deciding whether a continuance should be granted. Section 437c, subdivision (h) reflects a policy to allow reasonable discovery to a litigant who is at risk of losing his case before trial. (Cooksey, supra, 123 Cal.App.4th at p. 253.) Kaiser submitted a declaration from its medical expert stating that he had reviewed 13,000 pages of medical records; only about 100 pages of these records were submitted as exhibits supporting the medical expert's declaration in support of summary judgment. Grandfather's unrefuted declaration, in stark contrast, said that Kaiser had "produced nothing" to him. The trial court's conclusion that Plaintiffs' request for continuance should be denied because it was "factually unsupported, overly vague, and conclusory" cannot stand on the basis of the limited evidence before the trial court. It is thus not surprising that, on appeal, Kaiser does not attempt to defend the trial court's order denying the continuance. We conclude it was an abuse of discretion to deny a request for continuance and to grant summary judgment. (See Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 174 [motion for summary judgment should not be granted where party opposing summary judgment "has been thwarted in the attempt to obtain evidence that might create an issue of material fact, or discovery is incomplete"].)
Having objected to (and continuing to oppose on appeal) the creation of a settled statement that might have shed additional light on what transpired at the hearing on the motion for summary judgment and request for continuance, Kaiser cannot (and does not) argue that in the absence of a record of the oral proceedings the trial court's ruling should be affirmed.
Because we conclude that the trial court erred in denying Plaintiffs' request for a continuance, we vacate the judgment. Therefore, we need not reach any of Grandfather's other arguments that the trial court erred in granting Kaiser's motion or his argument that the trial court erred in denying his request for a settled statement, and we vacate the amended judgment and post judgment order. We take no position on the merits of the discovery issue or the summary judgment motion.
DISPOSITION
The judgments and order appealed from are vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. Grandfather shall recover his costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.