Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV261231, Sidney P. Chapin, Judge.
Kevin L. Murphy, in pro. per., for Plaintiff and Appellant.
Patterson, Ritner, Lockwood & Jurich and Karen A. Newcomb for Defendant and Respondent T. Maclennan, M.D.
Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Richard J. Rojo and D.L. Helfat, Deputy Attorneys General, for Defendants and Respondents A. Leong, M.D. and J. Ayson, M.D.
OPINION
Kane, J.
Plaintiff Kevin L. Murphy, a California prison inmate, sued three doctors who provided medical services concerning his injured knee—namely, defendants T. Maclennan, M.D. (Dr. Maclennan), A. Leong, M.D. (Dr. Leong) and J. Ayson, M.D. (Dr. Ayson). All three defendant doctors prevailed on dispositive motions in the trial court: Dr. Maclennan on a motion for summary judgment, and Drs. Leong and Ayson on a demurrer sustained without leave to amend. In the instant appeal, plaintiff challenges both of these rulings. As to the motion for summary judgment, plaintiff contends the trial court abused its discretion by denying plaintiff’s request for a continuance of the hearing date. We disagree. No abuse of discretion is shown by plaintiff and therefore we affirm the summary judgment in favor of Dr. Maclennan. As to the demurrer, plaintiff contends the trial court erred because the third amended complaint adequately alleged a cause of action against Drs. Leong and Ayson, and/or because leave to amend should have been allowed. We agree that a cause of action for medical negligence was adequately alleged and therefore we reverse the trial court’s order sustaining the demurrer to that cause of action.
FACTS AND PROCEDURAL HISTORY
The Third Amended Complaint
The operative pleading at the time of the dispositive motions was plaintiff’s third amended complaint, which we now summarize. Plaintiff fell and injured his right knee in October of 2004. Because of the extreme pain and swelling in his knee, plaintiff went to the medical department at the North Kern State Prison. Either Dr. Leong or Dr. Ayson examined plaintiff and ordered immediate x-rays. A report of the x-rays was made by Dr. Maclennan, a radiologist. Several days later, “either Dr. Leong or Dr. Ayson noted that the [plaintiff’s] right knee was giving way … and that there was tenderness along the collateral ligaments.” Allegedly, “[b]oth Dr. Leong and Dr. Ayson were well aware that plaintiff had a serious knee injury, because they were both made aware of the findings of the x-ray report as well as their own findings and notes that were made on October 27, 2004.”
According to the third amended complaint, Drs. Leong and Ayson negligently failed to diagnose the true nature and extent of plaintiff’s injury (i.e., a meniscal tear in the knee) and ignored clear symptoms of a torn meniscus such as locking or popping of the knee. The failure to correctly diagnose the nature of the injury allegedly contributed to plaintiff’s condition becoming worse over time and the delay also caused plaintiff to suffer additional or extended pain and suffering.
In March of 2005, Dr. Ayson allegedly “finally” referred plaintiff to an orthopedic specialist after noticing that the right knee had continual swelling in the suprapatella area, the knee was locking and plaintiff appeared to have a meniscal tear. Plaintiff was then seen by an orthopedic specialist, who recommended immediate surgery. After further delays caused by plaintiff’s transfer(s) to other prison facilities, surgery was performed on September 1, 2005.
As to Dr. Maclennan, the third amended complaint alleged negligence in failure to adequately evaluate, interpret and report his findings regarding the x-ray of plaintiff’s knee. Dr. Maclennan allegedly failed to properly diagnose plaintiff’s condition based on the x-ray.
The third amended complaint included three causes of action: (1) medical malpractice (negligence), (2) intentional or negligent misrepresentation, and (3) intentional or negligent infliction of emotional distress.
Procedural History Regarding Dr. Maclennan
On April 24, 2008, Dr. Maclennan filed a general and special demurrer to the second and third causes of action of plaintiff’s third amended complaint. On May 21, 2008, the trial court sustained the demurrer to the second and third causes of action without leave to amend. On June 6, 2008, Dr. Maclennan filed an answer regarding plaintiff’s first cause of action for medical malpractice.
On June 18, 2008, Dr. Maclennan filed his motion for summary judgment on the ground that the sole remaining cause of action against him—the first cause of action for medical malpractice—was without merit. The motion asserted that Dr. Maclennan’s only involvement in plaintiff’s care was as a consulting radiologist, that his sole duty was to review the x-ray films and issue a written report of his findings, and that Dr. Maclennan’s interpretation and report of the x-ray films was proper and within the standard of care. The motion was supported by the declaration of defendant’s medical expert, David Schale, M.D.
The hearing of the motion for summary judgment was noticed for September 9, 2008. On September 4, 2008, plaintiff filed a declaration stating that he was unable to file a timely response to the motion because prison officials had recently confiscated his personal property, and therefore plaintiff requested a continuance of the hearing date. On September 9, 2008, the trial court denied plaintiff’s continuance request, granted Dr. Maclennan’s motion for summary judgment and then entered a judgment in favor of Dr. Maclennan.
Procedural History Regarding Drs. Leong and Ayson
On May 14, 2008, Drs. Leong and Ayson filed a general demurrer to the entire third amended complaint on the ground that it failed to state a cause of action against either of them. The basis for the demurrer to the first cause of action (medical negligence) was that plaintiff failed to allege whether or when he consulted with Dr. Leong or Dr. Ayson, or both, for treatment of his knee injury. The allegations of the third amended complaint merely suggested there was care or treatment of plaintiff’s knee by someone, either Dr. Leong or Dr. Ayson, but it is not clear which one. The demurrer to the second cause of action (intentional or negligent misrepresentation) was on the ground that plaintiff failed to allege a factual basis for a misrepresentation on the part of either doctor. The demurrer to the third cause of action (infliction of emotional distress) was on the ground that plaintiff failed to allege which of the respective defendants allegedly caused him harm or injury, what defendants’ roles were, if any, and what conduct of one or both defendants was extreme and outrageous in character and created severe emotional distress. Further, to the extent the emotional distress cause of action was merely one for negligence, it was subsumed under (and not separate from) the first cause of action.
On June 17, 2008, plaintiff filed opposition to the demurrer, arguing that the third amended complaint adequately set forth a cause of action for medical negligence against Drs. Leong and Ayson. Plaintiff noted that the reason he did not allege “which defendant did what” was that the doctors’ entries in the medical records were not legible. He argued that further discovery was needed to determine “which defendant made what examination” of plaintiff. As to the second cause of action for misrepresentation, plaintiff argued he adequately set forth that defendants concealed or misrepresented the nature of his injuries. Plaintiff had no objection to the trial court sustaining demurrer as to the third cause of action for infliction of emotional distress.
On June 24, 2008, the trial court sustained the demurrer to the third amended complaint without leave to amend. The trial court’s minute order stated, among other things, that the allegations failed to allege “when any action specifically occurred, specific conduct of each defendant which is a breach of a standard of care and caused any damage, that defendants saw [Dr. Maclennan’s] reports or findings, that any additional tests were necessary, or that 3/05 referral supports a claim of negligence” (capitalization omitted).
Notice of Appeal
Plaintiff filed his notice of appeal from both the order sustaining demurrer (as to Drs. Leong and Ayson) and from the summary judgment (as to Dr. Maclennan). The judgment entered in favor of Dr. Maclennan after the trial court granted his summary judgment motion was clearly appealable as to that defendant. (Code of Civ. Proc., § 904.1.) However, the trial court never entered a judgment of dismissal in favor of Drs. Leong and Ayson, even though their demurrer was sustained without leave to amend. Because it is clear the trial court intended to terminate the action in a final sense as to these defendants and the failure to enter judgment of dismissal was not the fault of plaintiff, we deem the order sustaining demurrer without leave to amend to include a subsequent judgment of dismissal as to defendants Drs. Leong and Ayson, and thus the appeal is properly before us. (Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 124, pp. 190-192 [appeal saved by amending judgment—cases summarized].)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
DISCUSSION
I. Summary Judgment
Plaintiff contends the trial court abused its discretion when it failed to grant his request for a continuance of the hearing date of Dr. Maclennan’s motion for summary judgment. For the reasons which follow, we disagree.
Section 437c expressly provides for continuances in subdivision (h), which states as follows: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Subdivision (h) mandates a continuance of a summary judgment hearing upon a sufficient showing that additional time is needed to obtain facts essential to justify opposition of the motion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254.) “Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.]” (Id. at p. 254.)
A declaration in support of a request for 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.]” [Citation.]’” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) An additional factor that the trial court may consider is whether there was unjustifiable delay or lack of diligence in failing to seek the discovery at an earlier time. (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 257 [lack of diligence by party seeking continuance supported trial court’s denial thereof].)
“‘The purpose of the affidavit required by … section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]’” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.) “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.)
In the present case, plaintiff’s declaration, filed five days prior to the hearing of the summary judgment motion, did not state that any facts essential to oppose the motion existed, or reasonably may exist, or that any such facts could be obtained through further discovery. Although plaintiff mentioned that he was transferred to a new prison facility on August 15, 2008, and that prison authorities had not relinquished his personal property after this transfer, there is no indication of what difference this occurrence made in terms of his ability to set forth material facts in opposition to the motion. Remarkably, plaintiff’s declaration completely fails to state that any facts existed, or even potentially existed, with which to oppose the motion. Moreover, there is absolutely no explanation offered for plaintiff’s failure to conduct discovery to oppose the motion at an earlier time. We conclude that plaintiff’s request for continuance was utterly deficient under section 437c, subdivision (h), and thus the trial court was not obligated to grant the continuance under that provision.
Plaintiff also says that “prison officials have failed to provide me with copies of my medical records, in particular the October 2004 [x-rays].” The statement is not persuasive. Plaintiff does not indicate what efforts, if any, he made to obtain the x-ray films or when he did so. He had over three years to obtain the x-ray films before filing his lawsuit, and he had an additional 14 months’ opportunity prior to the hearing. It appears plaintiff was capable of obtaining his own medical records, as demonstrated by the fact that his pleadings quote verbatim from Dr. Maclennan’s radiologic report. Moreover, the record shows that Dr. Maclennan offered to provide a copy of the x-rays upon payment of copying expenses, yet plaintiff declined. Finally, the x rays could not provide a sufficient basis for opposing the motion unless plaintiff also had an expert medical witness, and plaintiff gives no indication that he had any such expert.
“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of … section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion.” (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716.) Similarly, a request for an extension of time to file opposition is within the trial court’s discretion. Subdivision (b)(2) of section 437c specifies that opposition to the motion must be filed and served “not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”
Our review applies the abuse of discretion standard. (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.) “Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137-1138.) “‘The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice[,] a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Id. at p. 564, italics omitted.)
We discern no abuse of discretion in this matter. As noted above, plaintiff’s request for a continuance failed to indicate that any facts existed or even potentially existed with which to oppose Dr. Maclennan’s motion for summary judgment, and no explanation was provided for plaintiff’s lack of diligence in pursuing discovery at an earlier time. Plaintiff’s conclusory declaration submitted shortly before hearing in connection with his continuance request failed to indicate that any legal or factual basis for opposing the summary judgment motion could be presented if a continuance were granted. We conclude the trial court appropriately denied plaintiff’s request.
Not only has plaintiff failed to affirmatively demonstrate, with citation to the record and supporting legal argument, the existence of an abuse of discretion resulting in a miscarriage of justice, but from our review of the record, we readily conclude the denial of plaintiff’s request for a continuance was not an abuse of discretion. Since this was the only claim of error as to the motion for summary judgment, we affirm the order and judgment entered by the trial court in favor of Dr. Maclennan.
II. Demurrer
Plaintiff claims the trial court erred in sustaining, without leave to amend, the general demurrer of Drs. Leong and Ayson to the third amended complaint. Plaintiff argues he stated a valid cause of action against Drs. Leong and Ayson, and, in any event, a further opportunity to amend should have been permitted. We now consider these contentions.
In this section (pt. II) of our discussion, when we use the term “defendants,” we mean Drs. Leong and Ayson.
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
We begin with the first cause of action for medical negligence. “‘The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. [Citations.]’” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746-747.) “Negligence may be alleged in general terms; that is, it is sufficient to allege an act was negligently done without stating the particular omission which rendered it negligent. [Citations.]” (Id. at p. 747.) “‘“In this state[,] negligence may be pleaded in general terms, and that is as true of malpractice cases as it is of other types of negligence cases.”’ [Citations.]” (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) “So far as the rules of pleading are concerned, there is no requirement that [a plaintiff] identify and allege the precise moment of the injury, or the exact nature of the wrongful act.” (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 102.)
In the third amended complaint, plaintiff alleged that either Dr. Leong or Dr. Ayson ordered x-rays at the time of plaintiff’s initial examination, and that either Dr. Leong or Dr. Ayson observed plaintiff’s right knee was giving way, etcetera, and despite the existence of symptoms showing the nature of plaintiff’s knee injury, defendants negligently failed to diagnose the fact that plaintiff had a torn meniscus. Both doctors were allegedly aware, at some point in time, of the findings of the x-ray report, although it is not clear when they received the x-ray report. Further, plaintiff alleged that the failure to correctly diagnose plaintiff’s knee injury was a breach of the standard of care, and that such failure allegedly caused a worsening of the knee condition and additional pain and suffering.
Liberally construed, these factual allegations are sufficient to indicate that at least one of the two doctors actually examined plaintiff’s knee and reviewed the x-ray report, but negligently failed to diagnose or negligently misdiagnosed the nature of plaintiff’s injury, leading to further injuries. For pleading purposes, a cause of action for medical negligence is adequately stated against either Dr. Leong or Dr. Ayson. (See Hahn v. Mirda, supra, 147 Cal.App.4th at p. 747 [general allegations of negligent care and diagnosis are sufficient]; § 452 [“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties”].)
The problem is that because of plaintiff’s use of “either/or” allegations, the pleading fails to identify which defendant (i.e., Dr. Leong or Dr. Ayson) actually examined or treated plaintiff concerning his knee injury. It is therefore impossible to tell from the allegations whether it was Dr. Leong or Dr. Ayson, or both, who allegedly breached a professional duty of care to plaintiff in regard to diagnoses of his knee injury. Plaintiff argues that due to a lack of clarity or legibility in the medical records, he does not know which of the two defendants, Dr. Leong or Dr. Ayson (or both), was legally responsible for the negligent diagnosis of his knee condition, and that further discovery was needed to find out. Under these circumstances, plaintiff contends that he was entitled to plead in the alternative. (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations”]; 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 402, p. 542 [right to plead in the alternative summarized and cases compiled].)
Plaintiff could have pled on information and belief that both defendants examined his knee, ordered x-rays and negligently failed to diagnose his knee injury. He chose not to and instead alleged that it was either one defendant or the other.
We agree that plaintiff was entitled to plead his case in the alternative under the circumstances, but we would add a further justification for that conclusion—namely, section 379, subdivision (c). That section, which is one of the statutory provisions concerning permissive joinder of parties, states as follows: “Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.” In Kraft v. Smith (1944) 24 Cal.2d 124 (Kraft), our Supreme Court held such statutory procedure was permissible where “the injury for which recovery is sought was proximately caused by the negligence of one or another or several of two or more persons and, as to each person who is not charged absolutely, that a reasonable uncertainty, requiring determination of some factual or legal issue, exists in respect to alternative or quantitative liability.” (Id. at pp. 130-131.) In Kraft, the uncertainty existed because two doctors treated the plaintiff’s medical condition (broken bones in her leg and ankle) successively, one week apart, the plaintiff believed both were negligent in some respects but she did not know which doctor’s conduct was the proximate cause of her injuries. (Id. at pp. 129-130; see also Landau v. Salam (1971) 4 Cal.3d 901, 906 [same].) Here, as in Kraft, the situation fits within the statutory scope of section 379, subdivision (c), thereby allowing plaintiff to plead against the two defendants in the alternative.
As to the second and third causes of action, plaintiff has failed to adequately argue or raise any issue with respect to those causes of action in his opening brief, and therefore he has waived the right to do so. It is fundamental to the appellate process that a judgment is presumed correct and error must be affirmatively shown. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Issues that are not expressly raised and supported in an appellant’s opening brief are deemed forfeited or abandoned. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685; Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1410.) A point only raised in a perfunctory way, without adequate analysis and authority, is passed as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) When the appellate court is unable to discern a party’s specific arguments, it may deem them to be abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Since we conclude that plaintiff has forfeited any challenge to the trial court’s order sustaining demurrer to the second and third causes of action, that portion of the order will not be disturbed.
DISPOSITION
The trial court’s order sustaining the demurrer as to the first cause of action for medical malpractice against defendant Drs. Leong and Ayson is reversed. The lower court is directed to enter a new order overruling the demurrer to the first cause of action. The balance of the trial court’s order sustaining demurrer without leave to amend is affirmed. Plaintiff and defendant Drs. Leong and Ayson are to bear their own costs on appeal.
The trial court’s order granting summary judgment in favor of defendant Dr. Maclennan is affirmed. Costs on appeal are awarded to defendant Dr. Maclennan.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.