Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG06302527.
NEEDHAM, J.
Jose Melchor and Natalie Melchor, by and through their guardians ad litem, Martin Melchor and Ramona Melchor, appeal from a judgment entered after the court granted the summary judgment motion of respondent Fresno Community Hospital and Medical Center (Fresno Community). Appellants contend that the court erred in overruling their objections to the evidence submitted by Fresno Community, and a triable issue of material fact precluded the grant of summary judgment. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In December 2006, Jose and Natalie Melchor, through their guardians ad litem, filed a complaint alleging professional negligence on the part of numerous defendants including Fresno Community (erroneously sued as “Fresno University Hospital”). Appellants alleged that the defendants’ negligent examination, diagnosis, and treatment resulted in Jose and Natalie suffering herpes type II meningoencephalitis and developing cerebral palsy.
Because their last names are the same, we refer to Ramona Melchor, Jose Melchor and Natalie Melchor by their first names for clarity, without disrespect.
A. Fresno Community’s Summary Judgment Motion
In April 2008, Fresno Community filed a motion for summary judgment, contending it was entitled to judgment as a matter of law because its care of Ramona, and its care of Jose and Natalie, were not negligent. In its separate statement of undisputed material facts, Fresno Community asserted the following based on supporting evidence.
Ramona became pregnant with twins, appellants Jose and Natalie, in 2001. In connection with her prenatal care, an Initial Combined Assessment under the Comprehensive Perinatal Services Program was conducted in November 2001 by “B. Vargas.” The assessment noted that Ramona denied she or her partner ever had a sexually transmitted infection, including herpes.
Ramona’s anticipated delivery date was in March 2002. On January 18, however, Ramona went to Mercy Medical Center (Mercy) because she was having contractions.
On January 19, 2002, Ramona was transferred from Mercy to University Medical Center (University) for further treatment. University was operated by Fresno Community, but the physicians working at University at the time were not employees of Fresno Community.
According to the nursing intake at University, Ramona was not receiving treatment for sexually transmitted diseases. Ramona did not tell anyone at Fresno Community that she had sores on her genitals, and she denied ever having any sores.
On February 4, 2002, Jose and Natalie were born by vaginal delivery at University. Jose weighed less than six pounds, and Natalie weighed less than five pounds. Other than their premature birth and small size, there were no apparent complications with either baby.
Ramona was discharged from University on February 6, 2002. Jose and Natalie were discharged in stable condition on February 13, 2002. Neither Ramona nor the twins had any further contact with University or Fresno Community.
Jose and Natalie were later diagnosed with herpes type II meningoencephalitis.
Based on the declaration of expert witness Michael G. Ross, M.D., Fresno Community further asserted the following as undisputed facts: Fresno Community, through its nursing staff and other hospital employees, met the applicable standard of care during their treatment of Ramona; there was nothing that Fresno Community’s nursing or other hospital employees did or failed to do that caused or contributed to Jose or Natalie contracting herpes; and all of the physicians involved in Ramona’s prenatal and perinatal care at University met the standard of care.
B. Appellants’ Response to Summary Judgment Motion
In opposition to the motion for summary judgment, appellants argued that Fresno Community had failed to negate its potential liability for the acts or omissions of Dr. Pena, whom it purportedly supervised, under the theory of respondeat superior. Appellants also objected to Fresno Community’s evidence. As relevant to this appeal, appellants argued that Dr. Ross’s declaration constituted improper expert opinion and Exhibit 2 to the declaration of Andrew Weiss, consisting of Fresno Community medical records, was inadmissible because there was no showing that the records were trustworthy. (See Evid. Code, § 1271.)
In their response to Fresno Community’s separate statement of undisputed facts, appellants denied that Ramona was not receiving treatment for sexually transmitted diseases according to the nursing intake at University, denied that the twins stayed in the intensive care unit for further treatment and evaluation due to their prematurity, denied that Natalie was diagnosed with herpes at Children’s Hospital of Oakland, and denied Dr. Ross’s opinions that Fresno Community met the applicable standard of care, Fresno Community did not contribute to Jose and Natalie contracting herpes, and all physicians at University met the applicable standard of care. However, appellants neither cited any evidence nor submitted any evidence to support any of these denials.
As a purported additional undisputed material fact, appellants asserted that Dr. Pena was a resident at University and a University agent or employee, based on documents for which appellants sought judicial notice.
C. Continuation of Hearing to Conduct Discovery
At the summary judgment hearing on July 31, 2008, appellants’ counsel raised for the first time his contention that one of the physicians in attendance at the twins’ delivery, Dr. Adair, was not licensed by the Medical Board of California. In response, the trial court continued the hearing to November 18, 2008, granting appellants’ counsel over three months to conduct discovery on that issue. The court advised appellants to investigate the issue promptly so the motion could be decided at the November 18, 2008 hearing.
Written discovery indicated that Dr. Adair was a resident physician at the time of the twins’ delivery and was therefore not required to hold a license. Appellants’ counsel failed to take Dr. Adair’s deposition before the November 18 hearing.
D. Trial Court’s Ruling
The court granted Fresno Community’s motion for summary judgment, finding that appellants had not established a triable issue of material fact. The court noted that Dr. Ross’s expert witness opinions were undisputed, and observed that the evidence concerning the licensure of Dr. Adair did not show that her conduct breached the standard of care or caused appellants’ alleged damages. The court overruled appellants’ objections to Fresno Community’s evidence and denied appellants’ request for judicial notice.
This appeal followed.
II. DISCUSSION
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the non-moving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (Ibid.; Thomas, supra, 98 Cal.App.4th at p. 72.)
A. Fresno Community Was Entitled to Summary Judgment
Appellants contend that Fresno Community is liable for the acts of Dr. Pena and Dr. Adair (more precisely, for their medical malpractice) under a theory of “ostensive agency.”
For Fresno Community to be liable under an ostensible agency theory, appellants would have to prove, among other things, that Dr. Pena or Dr. Adair was negligent: specifically, that the healthcare professional failed to exercise the skill, prudence and diligence as exercised by other members of the profession under similar circumstances, and that this breach of the standard of care caused the alleged injury. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
In their summary judgment motion, Fresno Community contended its care of Ramona, Jose and Natalie met the applicable standard of care. It supported this contention with expert witness testimony, by declaration from Dr. Ross, that Fresno Community’s nursing or other hospital employees did not breach the standard of care or cause Jose’s or Natalie’s alleged damages, and all the physicians involved in Ramona’s care at University met the standard of care as well. From this evidence, a trier of fact could reasonably conclude that Drs. Pena and Adair did not commit medical malpractice and Fresno Community was not liable for appellants’ alleged injury.
The burden therefore shifted to appellants to produce evidence establishing a triable issue of material fact. In particular, appellants were required to come forward with conflicting expert evidence. 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.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) As stated more than two decades ago in Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, at pages 984-985: “As previously noted, plaintiffs failed to submit the declaration of an expert in opposition to the motion for summary judgment. Accordingly, no triable issue of fact was presented regarding defendants’ compliance with the relevant medical standard of care and summary judgment on plaintiffs’ cause of action for medical malpractice must be affirmed. ‘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.]” (Italics added.)
Appellants fail to establish that they produced evidence sufficient to demonstrate a triable issue of material fact. Appellants did not submit any expert evidence from which a trier of fact could conclude that Dr. Pena or Dr. Adair breached the standard of care or caused appellants’ injuries. Indeed, appellants did not present any evidence to support their assertion that Dr. Pena or Dr. Adair was negligent, or that Fresno Community could be liable on appellants’ claims.
In their opening brief in this appeal, appellants proclaim: “The liability of Jorge Pena, M.D., and Gina Marie Adair, M.D., is set forth in detail in a separate appeal pending before this Court in Case No A124449.” Of course, whatever evidence appellants discussed in appeal number A124449 does not help them in this appeal, because the evidence submitted to the trial court in opposition to the summary judgment motion of Drs. Pena and Adair was not submitted in opposition to the summary judgment of Fresno Community. In any event, in appeal number A124449 we conclude that the trial court correctly granted summary judgment in favor of Drs. Pena and Adair, because appellants failed to establish a triable issue of material fact as to the doctors’ negligence. To the extent appellants rely here on their efforts in appeal number A124449, they fall short here too.
The trial court did not err in granting Fresno Community’s motion for summary judgment.
B. Appellants’ Arguments Are Utterly Devoid of Merit
Appellants make a number of additional arguments pertaining to the admissibility or sufficiency of Fresno Community’s evidence, as well as matters that they claim create a triable issue of material fact. We address them in turn.
1. Admission of the Vargas Assessment
As mentioned, Fresno Community asserted as an undisputed material fact that Ramona denied that she or her partner had a sexually transmitted disease, as recorded in the Initial Combined Assessment form signed by “B. Vargas.” Fresno Community supported this assertion with a copy of the Initial Combined Assessment form.
Appellants now contend that the trial court abused its discretion in admitting the “assessment of B. Vargas, CPHW.” Appellants represent: “Appellants objected to this evidence and denied the material issue of fact. The trial court overruled appellants’ objection and granted the summary judgment motion.”
Appellants’ representation is false. Although appellants denied that Fresno Community’s statement of fact was undisputed, they did not make an evidentiary objection to Vargas’ assessment. Their response to the separate statement of material facts contained no objection, their opposition to the summary judgment motion did not note an objection, and their separately filed objections to Fresno Community’s evidence did not mention the Vargas assessment. (Appellants did object to Exhibit 2 to the declaration of Andrew R. Weiss, but Exhibit 2 did not include Vargas’ assessment.) It is therefore not true that appellants objected to the assessment, and equally untrue that the trial court overruled the objection, since no objection had been made.
Even though appellants’ misrepresentation was brought to their attention by the respondent’s brief, appellants do nothing in their reply brief to correct, clarify or apologize for their misrepresentation. We take that as an admission by appellants’ counsel that he has no excuse for his misrepresentation. In any event, by failing to object to the Vargas assessment in opposing the summary judgment motion, appellants waived their objection.
2. Admission of Medical Records (Exhibit 2 to Schwartz Declaration)
Next appellants contest the trial court’s overruling of their objection to certified medical records submitted by Fresno Community, which were attached to the declaration of Andrew Schwartz as Exhibit 2. Appellants base their argument on the requirements for an affidavit of a professional photocopier set forth in Business and Professions Code section 22462.
However, appellants did not object to the records on this ground in the trial court. Instead, appellants objected to the admission of the records on the ground that the documents were not shown to be trustworthy as required by the business records exception (Evid. Code, § 1271), because some other records had been withheld. The trial court overruled this objection, and appellants do not challenge that ruling or address their Evidence Code section 1271 argument.
The trial court ruled: “Plaintiffs’ objection to Exhibit 2 to the declaration of Weiss is OVERRULED. The fact that some records were withheld as required by state and federal law does not show that the medical records submitted were not trustworthy.”
Appellants waived their right to object to the documents on the ground of Business and Professions Code section 22462 by failing to assert the objection in the trial court. They have also waived their right to challenge the trial court’s ruling with respect to Evidence Code section 1271 by failing to raise it in their opening brief in this appeal.
3. Admission of Dr. Ross’s Declaration
Appellants contend the court erred in overruling their objection to Dr. Ross’s “report” on the ground of improper expert opinion. Presumably appellants are referring to their objection to Dr. Ross’s declaration that Fresno Community submitted in support of its summary judgment motion.
In objecting to Dr. Ross’s declaration in the trial court, appellants stated: “Improper expert opinion, failure to be familiar with standard of care, improper opinion. Opinion is based on hypothetical not in evidence. [¶] Powell v. Kleinman (2007) 151 CA4 112, 124. It is speculative, lacks foundation, and is stated without sufficient certainty.” In their points and authorities in opposition to the summary judgment motion, appellants argued that Dr. Ross’s declaration was inadmissible because he assumed that no physicians had been sued and his opinions were based on medical records that were incomplete (i.e., the records attached as Exhibit 2 to the Schwartz declaration). The trial court ruled: “Plaintiffs’ objections to the entire declaration of Michael Ross, M.D. are OVERRULED. Dr. Ross’s testimony about whether the employees and physicians working at Fresno Community met the applicable standard of care is not based on the assumption that Dr. Pena and Dr. Fulara are not being sued.”
Appellants’ argument on this point is nearly incomprehensible. It fails to address the trial court’s rejection of their argument that Dr. Ross’s opinions assumed that Drs. Pena and Fulara had not been sued. To the extent appellants argue that Dr. Ross’s opinions were inadmissible because they were based on inadmissible medical records, their argument lacks merit because, as we stated ante, they have not shown the medical records were inadmissible. Appellants fail to demonstrate that the trial court’s denial of appellants’ objection was a prejudicial abuse of discretion.
4. Sufficiency of Dr. Ross’s Declaration
Relying on Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (Garibay), appellants argue that it was unnecessary for them to produce expert witness testimony to establish a triable issue of material fact. Their point, it seems, is that Dr. Ross’s expert witness declaration was insufficient because it was based on conjecture or on facts lacking evidentiary support, and Fresno Community therefore failed to meet its initial burden. Appellants are incorrect, and their reliance on Garibay is misplaced.
In Garibay, the defendant’s summary judgment motion relied solely on its expert witness’s opinion that the defendant did not commit medical malpractice. The expert witness based his opinion on facts derived from his review of hospital and medical records, but those records were not properly admitted into evidence and did not accompany the declaration or summary judgment motion. (Garibay, supra, 161 Cal.App.4th at p. 737.) The appellate court held that summary judgment was inappropriate because there were no facts before the trial court on which the expert medical witness could rely to form his opinion. (Ibid.) The court noted, however, that one proper way to get the documents before the trial court would be to submit authenticated medical records under the business records exception. (Ibid.)
Here, unlike the facts in Garibay, Dr. Ross based his opinions on records that were properly admitted into evidence and did accompany the summary judgment motion. The records were authenticated and presented to the court under the business records exception. Although appellants claimed the documents were not subject to the business records exception, their objection was overruled and they have not challenged the ruling in this appeal. Appellants’ argument fails.
5. Whether Dr. Adair Was Licensed Is Not a Material Issue
Appellants point out that they raised in the trial court the issue of whether Dr. Adair was licensed by the Medical Board of California at the time of the delivery of the twins. They assert that Dr. Adair was required to hold a license, urging: “No California appellate has ever held that a resident physician is no required to hold a license.” (Sic.)
Appellants do not, however, present any evidence that Dr. Adair’s failure to be licensed at the time of the twins’ delivery meant that Dr. Adair’s performance fell below the standard of care, in a manner that caused or contributed to the damages that appellants’ allege. Appellants insist that “[t]he fact that he had no license is itself is negligence [sic], ” but they neither cite any legal authority for this conclusory proposition nor provide any argument to support it. They also assert that it was Fresno Community’s responsibility to verify the licensing of physicians, but provide no evidence or legal argument to support the conclusion that a breach of that duty caused or contributed to the appellants’ alleged damages. Therefore, to the extent there is a dispute over Dr. Adair’s licensing, it has not been shown by appellants to be material to whether Dr. Adair was negligent, or to whether Fresno Community would be liable in this case.
6. Where the Twins Were Born Is Not a Material Issue
In their reply brief, appellants argue that “one of the experts” testified that the twins were born at Fresno Community, while the “other expert” testified that they were born at University. Appellants cite two pages from the clerk’s transcript, which actually demonstrate that appellants’ assertion is false.
Laura McComb (not an expert witness but a corporate risk management officer) stated in her declaration that Jose and Natalie “were born at UMC [University].” It is also clear from Dr. Ross’s declaration that Jose and Natalie were born at University. Appellants therefore fail to establish any factual issue in this regard.
Furthermore, appellants do not show why a factual dispute on this point would be material. Since the undisputed expert witness evidence is that no physicians at University and no one at Fresno Community failed to meet the applicable standard of care, it makes no difference whether the twins were born at University or Fresno Community.
On July 22, 2010, this court issued a notice under rule 8.276 of the California Rules of Court that the court is considering the imposition of sanctions against appellants’ counsel in one or more of the appeals numbered A124445, A124448, and A124449. The court will rule on the sanctions issue as set forth in the notice, in a separate order.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.