Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC05160, David R. Chaffee, Judge.
Cornelius P. Bahan, Inc. and Cornelius P. Bahan for Plaintiff and Appellant.
La Follette, Johnson, DeHaas, Fesler & Ames; David J. Ozeran; Fonda & Fraser and John Aitelli for Defendant and Respondent.
OPINION
IKOLA, J.
Plaintiff Martha J. Shelton appeals the court’s grant of summary judgment in favor of defendant Lions Eye Institute for Transplant and Research, Inc. (Lions), on her negligence claims relating to the transplant of an infected cornea in her eye. Plaintiff contends (1) her filing of a third amended complaint rendered moot Lions’ motion for summary judgment on her second amended complaint; (2) the court abused its discretion by denying her motion for a continuance of the summary judgment hearing pursuant to Code of Civil Procedure section 437c, subdivision (h) (section 437c(h)); and (3) the court erred by granting Lions’ summary judgment motion. We conclude (1) the third amended complaint did not expand or change the scope of issues presented by the second amended complaint, and, in any event, plaintiff waived the asserted mootness of Lions’ summary judgment motion by failing to raise it below; (2) plaintiff failed to make an adequate showing under section 437c(h) and therefore the court properly denied her continuance motion; and (3) the court properly granted summary judgment to Lions because no triable issue of material fact exists as to whether Lions met the relevant standard of care. Accordingly, we affirm the judgment.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
Plaintiff’s Initial Complaint and First Amended Complaint
In 2007, plaintiff filed a complaint which did not name Lions as a defendant. The complaint alleged a medical malpractice cause of action against the University of California, Irvine Medical Center; the Regents of the University of California; and four physicians (collectively, the “UCI defendants” or “UCI”), who are not parties to this appeal. Plaintiff alleged the UCI defendants were negligent in treating her ophthalmological problems and caused the loss of her eye.
In February 2008, plaintiff filed a first amended complaint that included a products liability cause of action against Lions. She alleged Lions provided the contaminated cornea that was implanted in her eye.
Lions’ First Summary Judgment Motion
In September 2008, Lions filed its first motion for summary judgment. Lions stated it is a “non-profit charitable organization dedicated to the recovery, evaluation and distribution of eye tissue for transplantation, research and education.” It alleged it met the standard of care and the standard in the industry in obtaining the cornea in question (which came from a donor who died at a Florida hospital) and did not cause injury to plaintiff. The motion was supported by declarations of an ophthalmological expert and eye bank medical director, of Lions’ executive director, and of Lions’ counsel. Lions also attached as an exhibit an information sheet it had provided a UCI doctor to assist “surgeons in the evaluation of corneas for transplant.” The sheet advised the doctor that Lions had not performed any cultures on the cornea and that the “final responsibility for determining the suitability of the tissue for transplantation rests with the surgeon.” Lions also attached, inter alia, its donor records file, including the donor’s medical history and laboratory data.
Lions’ executive director declared, inter alia: A Lions technician removed the corneas from the donor at the hospital and placed them “in glass jars which were not opened prior to leaving the Lions Eye Institute.” The technician obtained blood from the donor, which tested negatively for Hepatitis, HIV, and other diseases. The technician reviewed the donor’s hospital chart and completed a donor screening form; the chart revealed the donor had normal white blood cell counts, was not feverish, and had negative blood cultures. Lions does not accept corneas from infected donors. At the Lions Eye Institute, the executive director visually inspected the corneas in the jar (i.e., both corneas from the donor) and deemed them suitable for transplant. On the day after the cornea was harvested from the donor, Lions sent it to a doctor who requested it. The next day, the doctor received the cornea; however, his patient did not show up for surgery and therefore “the unopened corneal tissue was re-packed with ice and sent back to” Lions, which received it the following morning. “The ice was only slightly melted and the tissue was inspected and found suitable for redistribution.” That same day, a UCI doctor requested a cornea for transplant; he received the cornea the next day. Lions never cultures corneas, because cultures take “at least 24 to 48 hours to grow out.” “The standard in the industry is that the entity that harvests corneas does not culture the harvested tissue to check for infection.” Lions sends the recipient doctor a written recommendation to culture the cornea before implantation, along with a warning the tissue cannot be warranteed by Lions. “It is standard practice for a physician who is not able to utilize a cornea to return the cornea to [Lions] and it is standard procedure to provide a returned cornea to another physician for transplantation... unless there is some reason why the cornea would not [be] suitable for transplant after having been returned to” Lions. As of the date the cornea was sent to UCI, Lions’ executive director was unaware of any reason why the cornea should not have been transplanted.
The expert ophthalmologist and eye bank director declared, inter alia: Lions obtained the cornea in a manner that met the standard of care and industry standards. “The tissue was timely harvested, an appropriate review of the donor’s medical condition was made and appropriate blood tests were performed to avoid the use of corneas which might be infected, and the corneas were placed in glass jars and sealed in accordance with industry standards.” Lions met the standard of care and industry standards in determining that the corneas were suitable for transplant. The standard of care does not require eye banks to culture tissue; the banks recommend that the surgeon have corneas cultured at the time of surgery. Lions provided the surgeon with warnings that were appropriate and adequate, and notified the surgeon that Lions did not culture the cornea. It was within the standard of care and industry standards for Lions to provide the returned cornea to another doctor because the jar had not been opened and the ice had not melted. “In addition, corneal tissue can remain in usable condition for approximately two weeks, and it had only been a few days since the tissue had been harvested from the donor.” Lions met the standard of care and industry standards by sending the cornea by overnight mail to UCI. “During the transplant surgical procedure, a sample of rim tissue from the corneal transplant was sent for culture” and proved to be infected. “To a reasonable medical probability, the cornea and eye did not become infected as a result of any act or omission on the part of [Lions], and there was no violation of the standard of care on the part of [Lions] which caused or contributed to the plaintiff’s injury.” “[T]o a reasonable medical probability, the tissue was not infected at the time it left Lions Eye Institute or arrived at UCI Medical Center.”
Lions’ separate statement of material facts included statements 19 and 39, which stated: “To a reasonable medical probability, the tissue did not become infected as the result of any act or omission on the part of Lions Eye Institute.” The document also included statements 20 and 40, which stated: “To a reasonable medical probability, the tissue was not infected at the time it was shipped from Lions Eye Institute to UCI Medical Center or at the time it arrived at UCI Medical Center.”
On November 19, 2008, Lions withdrew statements 20 and 40 (regarding the cornea’s infection-free condition at the time of its shipment to and arrival at UCI Medical Center) from its separate statement of material facts.
On the same day, plaintiff noticed depositions of Lions’ executive director, the Lions’ technician who collected the donor cornea, two UCI physicians, and persons most knowledgeable at Lions concerning its policies and procedures on removal, storage, maintaining, inspection, packaging, handling and shipping of donor corneas, its criteria for determining suitability for transplant and redistribution, and its blood testing and screening of the donor.
The following day, the UCI defendants moved for a continuance of the hearing on Lions’ summary judgment motion. The UCI defendants argued they could not “rely on Plaintiff to oppose” Lions’ summary judgment motion. They asserted, “Plaintiff, however, has not performed any discovery to develop the facts of this case.” The UCI defendants stated they intended to conduct discovery to gain answers to the questions left unanswered by Lions’ summary judgment motion and its “conclusory” supporting declarations.
Plaintiff joined the UCI defendants’ motion for a continuance of the hearing on Lions’ summary judgment motion. Plaintiff also opposed Lions’ summary judgment motion on grounds she could not fully oppose the motion until her counsel had completed outstanding discovery. She stated Lions’ November 19, 2008 notice of its withdrawal of “its claim in the summary judgment motion that the tissue was not infected at the time it was shipped from Lions to UCI Medical Center... absolutely necessitate[ed] discovery on this issue....”
Plaintiff’s opposition to Lions’ summary judgment motion was supported by her counsel’s November 21, 2008 declaration. The attorney declared his failure to complete discovery was not due to dilatory conduct but rather to his involvement in a lengthy medical malpractice trial and a complex bicycle accident case. The declaration listed many depositions the attorney had noticed for January 5, 12, and 13 of 2009. The attorney’s declaration listed the following issues raised by Lions’ summary judgment motion which would be addressed in the depositions: whether the cornea was properly harvested and procured; whether the cornea was properly removed, stored, and maintained; whether there was proper blood testing of the donor; whether the donor was properly screened; whether the cornea was properly inspected after harvesting and prior to shipping; whether the cornea was suitable for transplant; whether the cornea which was initially provided to a different patient and not used was suitable for redistribution and use on plaintiff; whether Lions complied with federal regulations, the American Association of Tissue Banks, and the Eye Bank Association of America when harvesting, testing, maintaining, and shipping its cornea products; whether the cornea was properly packaged, handled and shipped to UCI Medical Center.
At the December 2008 hearing on Lions’ summary judgment motion, Lions advised the court it withdrew statements 20 and 40 from its separate statement of undisputed facts because the UCI defendants threatened to oppose Lions’ summary judgment motion unless Lions withdrew its causation argument. Because Lions had moved for summary judgment on two grounds (standard of care and causation), it had withdrawn statements 20 and 40 because it did not need to establish causation if plaintiff failed to raise a triable issue as to standard of care.
The court elected to treat Lions’ summary judgment motion as a motion for judgment on the pleadings. The court ruled Lions, in collecting and distributing eye tissue, provided a service, as opposed to a product, and therefore plaintiff had failed to allege a necessary element of a products liability cause of action. The court therefore granted Lions’ deemed motion for judgment on the pleadings as to the sole cause of action against Lions. The court granted plaintiff leave to amend her complaint.
Plaintiff’s Second Amended Complaint, Lions’ Second Summary Judgment Motion, and Plaintiff’s Third Amended Complaint
On December 12, 2008, plaintiff filed a second amended complaint (SAC) naming Lions in two causes of action: (1) for medical negligence and (2) for negligence per se. In Paragraph 28 of the negligence per se cause of action, plaintiff claimed Lions “violated the statutes, regulations and ordinances associated with the procuring, processing, storing, testing, distributing and providing of donor corneas, including but not limited to [parts] 1270 and 1271 et seq.” of 21 Code of Federal Regulations (C.F.R.).
On December 23, 2008, Lions filed a demurrer to plaintiff’s negligence per se claim, setting a hearing thereon for February 6, 2009. Lions argued plaintiff failed to specify any statute or regulation Lions violated. Lions contended parts 1270 and 1271 of 21 C.F.R. “are lengthy provisions with numerous subparts” and plaintiff had failed to identify any specific provisions she claimed Lions violated nor had she set forth facts that would constitute a violation.
On January 10, 2009, before its demurrer had come on for hearing, Lions filed its second summary judgment motion, arguing that “plaintiff’s action for negligence has no merit.” Lions argued it met the standard of care in obtaining the cornea and did not cause injury to plaintiff. Lions attached plaintiff’s SAC as an exhibit to the summary judgment motion. Otherwise, Lions’ second summary judgment motion was substantially similar to its first such motion, with the same supporting declarations and exhibits, except that the second summary judgment motion deleted references to the cornea’s infection-free condition prior to its delivery to UCI Medical Center. Lions did not move alternatively for summary adjudication of each cause of action of the SAC. Instead it attacked the entire complaint with the same evidence and argument, not differentiating between the two purported causes of action.
In February 2009, the court sustained, with leave to amend, Lions’ demurrer to plaintiff’s negligence per se cause of action.
Four days later, plaintiff filed a third amended complaint (TAC), which included the following changes from the SAC. Plaintiff expanded on paragraph 28 of her negligence per se claim, alleging Lions violated 21 C.F.R., the American Association of Tissue Banks standards for tissue banking, and the Eye Bank Association of America medical standards, by failing to: employ competent and trained personnel; use clean, sanitized, properly maintained and calibrated equipment; use procedures preventing contamination or cross-contamination; use verified supplies designed to prevent infections; use packaging and shipping containers designed and constructed to protect human tissue from contamination; assure donor suitability and eligibility; use special gloves and gowns; use appropriate sterilization of tissue procedures and discard any cornea contaminated with the Enterococcus bacteria; assure the cornea was properly transported and not in wet ice temperatures more than 72 hours; and use a standard operating procedures manual to ensure tissue met minimum requirements defined by the American Association of Tissue Banks and applicable federal and state law and regulations. Plaintiff cited specific regulations and/or standards as to each alleged violation.
Ten days later, Lions demurred to the negligence per se cause of action in the TAC. Lions argued the TAC “merely specifies various regulations that were allegedly violated without setting forth any facts whatsoever constituting a violation or explaining what conduct on the part of [Lions] constituted a violation.” Lions argued “the allegations of regulatory violations in the [TAC] ‘are mere conclusions’ without any factual basis set forth whatsoever.” Lions stated that under Evidence Code section 669, a cause of action for negligence per se requires violation of “‘a statute, ordinance, or regulation, ’” not standards of the American Association of Tissue Banks and the Eye Bank Association of America. As to paragraph 28 of the TAC alleging violations of regulations, Lions contended the paragraph “parroted” the language of such regulations without stating facts upon which the alleged violation was based.
Plaintiff replied, inter alia, she “need only plead facts showing that she may be entitled to some relief” and Lions could “reasonably determine what issues must be admitted or denied as to the” negligence per se cause of action of the TAC.
On March 20, 2009, while the motion for summary judgment was still pending, the court overruled Lions’ demurrer to the TAC, stating: “Plaintiff has now pleaded the specific regulations allegedly violated and the basis of the violations; this is sufficient for pleading purposes.”
Also on March 20, 2009, plaintiff filed an opposition to Lions’ second summary judgment motion. Her opposition did not address the merits of Lions’ motion. Instead, plaintiff argued the motion should be denied or continued pursuant to section 437c(h) to allow her to complete her discovery. In support of plaintiff’s opposition, her counsel’s March 20, 2009 declaration stated the parties had exchanged “extensive written discovery” beginning in November 2007, but plaintiff needed to complete “a considerable amount of discovery” in order to oppose Lions’ summary judgment motion. Echoing his November 2008 declaration that opposed Lions’ first summary judgment motion, plaintiff’s counsel again declared his failure to complete this discovery was due to his “involvement in a lengthy medical malpractice/birth injury trial that... went forward in July through August, 2008” and “another complex case involving a bicycle accident resulting in quadriplegia” that settled in late November of 2008. Plaintiff’s counsel listed many depositions of UCI defendants that had been noticed but not completed. As to Lions, plaintiff’s attorney declared plaintiff intended to depose the same deponents he had listed in his November 2008 declaration, i.e., the technician who harvested the cornea, Lions’ executive director, and eight persons most knowledgeable. Similarly, plaintiff’s counsel repeated the same issues to be addressed by the depositions as he had listed in his November 2008 declaration, with the addition of the issues of whether the UCI surgeon was negligent in implanting a contaminated cornea, whether UCI employees were responsible for the contamination, and “[w]hether Lions or UCI was the source of plaintiff’s contaminated cornea as well as the other donor corneas which have been identified but withheld.”
On March 24, 2009, Lions answered the TAC.
At the April 10, 2009 hearing on Lions’ second summary judgment motion, plaintiff’s counsel argued, without evidentiary support, that UCI had received three corneas from Lions (from three separate donors), all of which were contaminated, and he needed time to determine whether the mates to these three corneas were also infected. He theorized that if the mates were also contaminated, the quality control problem would seem to lie with Lions, whereas if the mates were not infected, the fault would seem to be UCI’s. Plaintiff’s attorney complained that Lions and UCI had disclosed information to each other, but withheld it from plaintiff. Plaintiff’s counsel never mentioned that Lions’ second summary judgment motion failed to address the more specific allegations of negligence per se contained in plaintiff’s operative TAC.
The court stated it had “been through [plaintiff’s] papers with a fine-tooth comb.” The court denied plaintiff’s continuance request, stating the case had been filed almost two years earlier. The court had conducted a “detailed review” of plaintiff’s counsel’s declaration and concluded it was plaintiff’s counsel “who failed to initiate discovery in a timely fashion, both from the inception of the case and since the last time he requested a continuance to conduct discovery.” The court found plaintiff had not been diligent in initiating discovery to prosecute her case and plaintiff had not shown good cause for a continuance, i.e., an establishment of “facts evidencing the likelihood that controverting evidence may exist” and a proffer of “specific reasons why such evidence cannot be presented at the present time.” The court noted that although plaintiff complained of being impeded in obtaining discovery, plaintiff did not move to compel depositions or responses to written discovery. The court stated that plaintiff’s counsel’s declaration concerning future discovery was “virtually identical” to the list he had submitted to justify the continuance of Lions’ first summary judgment motion in December 2008, and that plaintiff failed to explain why such discovery had not taken place in January 2009 as previously noticed. The court observed plaintiff’s tactic appeared to be “to submit detailed declarations of the future need [for] discovery but on close inspection, these are merely a lengthy list of witnesses without any real indication of the facts essential to the opposition [about] which they will testify.” The court concluded: “Under the circumstances, I feel absolutely obligated, constrained here to deny the request to continue.”
Having denied plaintiff’s continuance motion, the court turned to Lions’ second summary judgment motion. Plaintiff’s counsel argued Lions had failed to show it met the “standard of practice” when sending the cornea to first one hospital and then receiving it back and sending it to UCI. He further contended Lions failed to show it warned UCI to culture the cornea before transplanting it. Again, plaintiff’s attorney did not mention that Lions’ second summary judgment motion failed to address the specific allegations contained in plaintiff’s operative TAC.
The court granted Lions’ summary judgment motion based on Lions’ “uncontroverted evidence that [it] did not breach the standard of care, or cause Plaintiff’s injuries.”
DISCUSSION
Plaintiff’s Filing of the TAC Did Not Render Moot Lions’ Second Summary Judgment Motion; Plaintiff Waived Any Error in that Regard
In her reply brief, plaintiff argues that her filing of the TAC rendered moot Lions’ second motion for summary judgment. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124 (State Compensation) [filing of amended complaint rendered moot a pending motion for summary adjudication].) At our invitation, the parties submitted supplemental letter briefs on this issue. We conclude the TAC did not change the scope of issues Lions needed to address. To the extent it did (for reasons we do not discern), plaintiff forfeited the issue by failing to raise it below, and, in any event, the parties argued the motion, without objection, on the theory that the motion applied to the action as then pleaded in the TAC.
As held by the Court of Appeal in State Compensation, it is generally true that “once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint.” (State Compensation, supra, 184 Cal.App.4th at p. 1131; see also Perry v. Atkinson (1987) 195 Cal.App.3d 14, 17-18.) “‘[A] court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action. After a cause of action is amended, the court may rule in favor of the defendant if, upon subsequent motion, or perhaps renewal of the earlier motion if appropriately framed, it is shown... there are no triable material issues of fact which would permit recovery on that theory.’” (State Compensation, at p. 1131.) But, as with most so-called “bright-line rules, ” nuances are implicit in the stated rule. Foremost among them is the assumption that the amended complaint contains additional material allegations that would require the moving party to assert additional allegedly undisputed facts in order to demonstrate “the action has no merit.” (§ 437c, subd. (a).) Put another way, if the pending motion for summary judgment is meritorious as against both the original and the amended pleading, no purpose is served by requiring a new or renewed motion.
Thus, in State Compensation, the plaintiff contended the trial court erred by summarily adjudicating a cause of action because the amended complaint had “changed the scope of the issues in the litigation.” (State Compensation, supra, 184 Cal.App.4th at p. 1129.) The motion for summary adjudication had been based on a statute of limitations defense, but the amended complaint had added a new defendant and additional allegations of a conspiracy between the new defendant and the original defendant. The amended complaint further alleged that actions in furtherance of the conspiracy continued even in the pending litigation. (Id. at p. 1128.) The Court of Appeal very sensibly ruled that these new issues of fact were outside the scope of the litigation as defined by the pleadings at the time the motion was filed, and, therefore, the pending motion had been rendered moot by the amended complaint. (Id. at pp. 1132-1133.) Similarly, in Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, the court had granted leave to amend the complaint during the pendency of a summary adjudication motion, and a “substantially amended second complaint was filed.” (Id. at p. 537, italics added.) Under these circumstances, “[i]t was error for the trial court to then test the sufficiency of the [new allegations] by relying, through judicial notice, upon issues determined to be without substantial controversy when those issues had been measured against allegations of a pleading that had been superseded.” (Ibid.)
Perry v. Atkinson, supra, 195 Cal.App.3d 14, is not particularly instructive because of the posture of the case on appeal. In Perry, the trial court had issued two orders: “one granting summary adjudication of the fraud and deceit cause of action in [both the] first and second amended complaints and another sustaining without leave to amend [defendant’s] demurrer to the fraud and deceit cause of action in [plaintiff’s] second amended complaint.” (Id. at p. 17.) The Court of Appeal did not discuss whether the second amended complaint had added new material allegations not addressed by the pending summary adjudication motion. It simply noted the second amended complaint had superseded the first amended complaint, thereby making it unnecessary to consider the trial court’s summary adjudication ruling. Instead, the Court of Appeal proceeded directly to consideration of the ruling sustaining the demurrer without leave to amend, ultimately affirming that ruling. (Id. at pp. 18, 21.) Because the decision was based on the demurrer ruling, the court’s comments regarding the summary adjudication motion were dicta.
Here, the TAC did not expand or change the scope of issues as presented by the SAC. The first and second cause of action of the TAC, for “medical negligence” and “negligence per se, ” did not change the essential charges of this action as pleaded in the SAC. Simply put, Lions was alleged to have “failed [to] use the level of skill, knowledge and care that other reasonably careful eye banks and human tissue providers would use in the same or similar circumstances....” The negligence per se allegations pleaded by plaintiff as a separate cause of action are, in reality, not a separate cause of action, but simply a more detailed description of how Lions allegedly failed to meet the applicable standard of care. “Essentially, application of the doctrine of negligence per se means that the court has adopted the conduct prescribed by the statute as the standard of care for a reasonable person in the circumstances.” (Casey v. Russell (1982) 138 Cal.App.3d 379, 383.) Thus, if Lions’ motion for summary judgment was sufficient to show it met the standard of care as to all practice standards applicable to its conduct, either by industry norms or by statutes, regulations or ordinances, the showing would shift the burden to plaintiff whether measured against the allegations of the SAC or the TAC.
In the trial court, both parties appeared to have recognized that if Lions’ motion was good against the SAC it was likewise good against the TAC. Neither party even mentioned the possibility that the filing of the TAC mooted the pending summary judgment motion. “Where the parties try the case on the assumption that a... particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 407, p. 466.) Plaintiff’s silence in the trial court on this issue stands in stark contrast to the vigorous objection made by the plaintiff in State Compensation, where the plaintiff had argued a ruling on the “motion ‘would be void because it would be based on an inoperative complaint superseded by the’” amended complaint. (State Compensation, supra, 184 Cal.App.4th at p. 1129.) If, for reasons not readily apparent to us, plaintiff had concluded the amended pleading changed the scope of the issues in the litigation or if, for any other reason, the pending motion did not address issues raised for the first time in the amended pleading, it was incumbent upon her to raise the issue with the trial court.
Instead, plaintiff “has ‘doubly waived’ the right to present this argument on appeal. [Citation.] First, the theory was never presented to the trial court.... ‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.’ [Citation.] It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.] [¶] Furthermore, the issue was never raised in the opening [brief plaintiff] filed in this court. Points raised for the first time in a reply brief ordinarily need not be considered [citations]....” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.) Moreover, as noted, the “doctrine of ‘theory on which the case was tried, ’... is a well-established rule of appellate practice” (9 Witkin, supra, Appeal, § 407, p. 466) precluding a change of theory on appeal.
The Court Did Not Abuse Its Discretion by Denying Plaintiff a Continuance
Plaintiff asserts the court abused its discretion by denying her a continuance of the summary judgment hearing to allow her time to discover additional facts to oppose the motion. Relying on Bahl v. Bank of America (2001) 89 Cal.App.4th 389 (Bahl) and Frazee v. Seely (2002) 95 Cal.App.4th 627 (Frazee), plaintiff contends that, to warrant a continuance, (1) she was not required to show she had been diligent in discovery, and (2) Lions was required to establish actual prejudice from any delay in prosecution. Plaintiff asserts that the deposition delay from January to March 2009 was excused by “extenuating circumstances, including the withholding of production of witnesses and documents that excuse this alleged delay.”
A split of opinion may exist in the Courts of Appeal on the relevance of discovery diligence to section 437c(h) requests for continuances. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255-257 (Cooksey).) Cooksey held that “the trial court may consider whether [the party moving for a continuance] has been diligent in completing discovery. (Id. at p. 251.) On this issue, Cooksey disagreed with plaintiff’s cited cases, i.e., Bahl, supra, 89 Cal.App.4th 389 and Frazee, supra, 95 Cal.App.4th 627. (Cooksey, at pp. 256-257.) The Cooksey court observed that the “Fourth District Court of Appeal... has questioned whether a party’s diligence (or lack thereof) in completing discovery should be a factor in granting or denying a continuance under section 437c, subdivision (h).” (Id. at p. 256.) But merely questioning whether diligence should be a factor does not amount to a ruling that diligence is never a factor. In Bahl, the court stated, “We question whether diligence alone should make or break a continuance request under [section 437c(h)].” (Id. at p. 398.) The Bahl court concluded that when a party demonstrates “that facts essential to justify opposition may exist but have not been presented to the court because the party has not been diligent in searching for the facts through discovery, the court’s discretion to deny a continuance is strictly limited.” (Ibid.) Thus, the Bahl court did not hold that diligence in completing discovery is never to be considered. At most, it held that when a court exercises its discretion in deciding a continuance motion, it should give greater weight to an adequate showing that “facts essential to justify opposition may exist” than it does to a showing of lack of diligence. In Frazee, the court found the party seeking the continuance “did make a sufficient showing of diligence, ” (Frazee, at p. 635), thereby rendering as dicta its expressed doubts about the relevance of diligence as a factor to be considered. With regard to the argument that Lions failed to show it would suffer prejudice if the court granted plaintiff’s continuance motion, we note that section 437c(h) contains no requirement that the responding party be prejudiced by the delay in prosecution. Bahl’s passing comment that defendant did “not suggest that it suffered any prejudice” (Bahl, at p. 399), does not translate into a requirement that the opposing party must show prejudice to defeat the motion. In any case, we need not resolve any potential conflict in the cases with regard to the diligence issue. As we shall discuss, plaintiff’s affidavit failed to meet the requirements of section 437c(h) for additional reasons beyond her lack of discovery diligence.
Section 437c(h) provides: “‘If 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, then be presented, the court shall deny the motion, or order a continuance to permit... discovery to be had....’ Subdivision (h) was added to section 437c ‘“[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.)
Thus, the threshold question presented by a section 437c(h) request is: Does the supporting affidavit show “that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented”? (§ 437c(h).) If the affidavit makes such a showing, the statute requires the trial court to grant a continuance or deny the summary judgment motion. (§ 437c(h).) Appellate courts have interpreted this statutory language to require an opposing party’s affidavit to meet each of the following requisites: First, the affidavit must be in good faith. (Cooksey, supra, 123 Cal.App.4th at pp. 253-254.) Second, it must show “that additional time is needed to obtain facts essential” to opposition. (Id. at p. 254.) Third, it must show “there is reason to believe such facts may exist” (ibid.), in other words, the affidavit must state facts “establishing a likelihood that controverting evidence may exist” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) [¶] 10:207.15, p. 10-78). Fourth, the affidavit must set forth the reasons why “‘additional time is needed to obtain these facts.’” (Cooksey, at p. 254.) Fifth, the affidavit must present these facts and reasons with particularity; the “party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 (Lerma), italics added.)
Here, the trial court carefully reviewed plaintiff’s opposing papers, then concluded she had failed to set forth any facts showing a likelihood that controverting evidence may exist. Plaintiff asserts the trial court missed or ignored a “critical portion of [her counsel’s] declaration, ” arguing that paragraph 9 of the declaration set forth the “factual issues that discovery would address relative to opposing the motion. [Citation.] Those facts are: Whether the donor cornea was properly harvested/procured; Whether the donor cornea was properly removed, stored, and maintained; Whether there was proper blood testing of the donor patient; Whether the donor patient was properly screened; Whether the donor cornea was properly inspected after harvesting and prior to shipping; Whether the donor cornea was suitable for transplant; Whether the donor cornea which was initially provided to a different patient and not used was suitable for redistribution and use on Plaintiff; Whether the donor cornea was properly packaged, handled and shipped to defendant UCI Medical Center; Whether Lions complied with Federal Regulations, the American Association of Tissue Banks, and the Eye Bank Association of America when harvesting, testing, maintaining, and shipping its cornea products; Whether [a UCI physician] was negligent in implanting a contaminated cornea and whether he or other UCI employees were responsible for the contamination; [and] Whether Lions or UCI was the source of Plaintiff’s contaminated cornea as well as the other donor corneas which have been identified but withheld.”
Lions counters that although plaintiff’s counsel “set forth a laundry list of issues he needed discovery on, there was no specification of what evidence any of the 29 witnesses was expected to provide that was necessary to oppose Lions’ motion.”
As we shall explain, plaintiff failed to provide a sufficient affidavit under section 437c(h). Her attorney’s declaration failed to specify any particular facts which might be obtained by discovery and any reasons why such facts were likely to exist. The general nature of the numerous “issues” listed in paragraph 9 amounts to a fishing expedition, or in Lions’ characterization, a laundry list. The “issues” cover the gamut of all potential violations of federal regulations governing eye banks. Paragraph 9 reveals plaintiff, at the time of her continuance request, had made no progress in identifying and honing the facts at issue in this case, even though Lions’ second summary judgment motion was scheduled to be heard in three weeks. It appears plaintiff failed to provide the affidavit required under section 437c(h) because she lacked sufficient “information to know if facts essential to justify opposition may exist.” (Bahl, supra, 89 Cal.App.4th at p. 398.)
Plaintiff offers various excuses as to why she delayed discovery, e.g., because Lions initially asserted the tissue was not infected at the time of shipment to or arrival at UCI Medical Center and because Lions suggested discovery be deferred to save money pending mediation efforts. But plaintiff deferred discovery at her own peril, especially given Lions’ two essentially identical summary judgment motions pending from September 2008 through April 2009.
Nonetheless, although the trial court was not required under section 437c(h) to grant plaintiff a continuance or deny Lions’ summary judgment motion, we must still consider whether the trial court should have granted plaintiff a continuance because she “established good cause therefor.” (Lerma, supra, 120 Cal.App.4th at p. 716.) In “the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion.” (Cooksey, supra, 123 Cal.App.4th at p. 254.)
The court did not abuse its discretion by finding plaintiff did not show good cause for a continuance. Not only did plaintiff fail to identify reasonably specific facts possibly to be gleaned from discovery, she provided inadequate justification for her delayed discovery. As discussed above in footnote two, there may be some disagreement with regard to the significance of discovery diligence or the lack thereof in a section 437c(h) affidavit. But generally speaking, diligence in pursuing discovery is a recognized factor in considering any motion for a continuance. (See, e.g., Cal. Rules of Court, rule 3.1332(c)(6) [Circumstances that may indicate good cause to continue a trial include “[a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts” (italics added)].) Lack of diligence is especially pertinent here, because plaintiff was effectively granted a first continuance in December 2008, when she requested a continuance and the court granted her leave to amend her complaint. Three months later, when plaintiff made her second continuance request, she included in her outstanding discovery the same depositions she had listed in her first continuance request and justified her discovery delay with the same excuse she gave in December 2008 (that her counsel was involved in other cases that did not resolve until November 2008). As the court stated, “The same tactic was employed four months ago. [¶] If this logic were followed to its conclusion, then [the] reality is no defendant could ever bring a summary judgment motion, since repeated declarations saying, I need to conduct more discovery, would essentially put summary judgment motions on the back burner until the date of trial and beyond.” The court did not abuse its discretion by denying plaintiff a continuance to conduct discovery. (Wachs v. Curry (1993) 13 Cal.App.4th 616, 624 [affidavit failed to show why evidence “could not have been obtained in the three months between” summary judgment motion filing and hearing], disapproved on another point in Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 987-988, fn. 6.)
The Court Properly Granted Lions’ Second Summary Judgment Motion
Plaintiff’s opposition to Lions’ second summary judgment motion did not include any response on the merits. Nonetheless, she points out she was not required to rebut Lions’ evidence until Lions met its initial burden of production. She asserts the court erred by granting Lions’ motion because (1) Lions did not “specifically address” the allegations of the TAC regarding all pertinent federal regulations and eye bank standards; (2) Lions did not provide evidentiary support that it warned the surgeon to culture the cornea before implanting it; and (3) “the credibility of Lions’ expert is in issue.”
A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) An appellate court reviews “the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “The moving party’s evidence is strictly construed, while that of the opponent is liberally construed, and ‘any doubts as to the propriety of granting the motion’ are resolved in the opponent’s favor.” (Greenberg v. Superior Court (2009) 172 Cal.App.4th 1339, 1346.) Evidentiary objections not made at the summary judgment hearing, or in writing at the time the opposition is filed, are deemed waived. (§ 437c, subds. (b)(5), (d); Cal. Rules of Court, rule 3.1354.)
A defendant moving for summary judgment meets “his ‘burden of showing that a cause of action has no merit if’ he ‘[shows] that one or more elements of the cause of action... cannot be established’” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849) or disproves “at least one essential element of the plaintiff’s cause of action” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465). The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for.” (Id. at p. 851.)
Lions’ separate statement of material facts and supporting evidence made a prima facie showing Lions met the standard of care for eye banks and therefore plaintiff’s negligence action had no merit. We address in turn each of plaintiff’s contentions to the contrary.
Plaintiff contends Lions failed to address her allegations in the list of federal regulations and other standards governing eye banks contained in the negligence per se claim of the TAC. The TAC, however, did not include any factual allegations; rather it recited the regulations without any specific allegations as to how Lions had violated them. (Cf. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [“statutory causes of action must be pleaded with particularity”].) And, as noted above, “the doctrine of negligence per se means that the court has adopted the conduct prescribed by the statute as the standard of care for a reasonable person in the circumstances.” (Casey v. Russell (1982) 138 Cal.App.3d 379, 383.) Thus, if Lions’ motion for summary judgment was sufficient to show it met the standard of care as to all practice standards applicable to its conduct, either by industry norms or by statutes, regulations or ordinances, the showing would shift the burden to plaintiff. Here, Lions presented the declaration of an expert witness opining that Lions “met the standard of care and the standards in the industry in providing the tissue to Dr. Pirnazar for transplant, and in the manner in which the tissue was provided.” The conduct prescribed by the statutes is part of the applicable standard of care which the expert witness opined had been met. Furthermore, Lions met its burden of production as to these allegations by setting forth facts in its separate statement of material facts as to its personnel, equipment, procedures, testing and screening of the donor, packaging and shipping methods, and storage of the cornea in ice. Once a defendant has met its burden of production and the burden has shifted to the plaintiff, the “‘plaintiff... may not rely upon the mere allegations...’ of his ‘pleadings to show that a triable issue of material fact exists but, instead, ’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....’” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) “A party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.)
As to plaintiff’s assertion Lions did not warn the UCI surgeon to culture the cornea before implanting it, Lions submitted evidence with its second (as well as its first) summary judgment motion of that warning. Counsel for Lions attached a document to his declaration, exhibit E, which he identified as having been retrieved from plaintiff’s medical records at Cedars-Sinai Medical Center pursuant to a subpoena. The document was a copy of Lions’ document that enclosed the cornea and stated in bold print that Lions had not cultured the tissue and the “final responsibility for determining the suitability of the tissue for transplantation rests with the surgeon.” The only reasonable explanation for this document to have been in plaintiff’s medical records is that the document was sent by Lions along with the cornea. Moreover, both the executive director for Lions and its expert witness declared, based on their respective review of the records, that the warning had been sent to the surgeon along with the cornea. Plaintiff did not object to this evidence, either in writing, or at the hearing.
Finally, plaintiff’s challenge to the credibility of Lions’ expert has no bearing on whether the court properly granted Lions’ summary judgment motion. “[S]ummary judgment may not be denied on grounds of credibility....” (§ 437c, subd. (e).) “‘If the moving party’s evidence is not controverted, the court must ordinarily accept it as true for purposes of the [summary adjudication] motion. In other words, the judge generally lacks discretion to deny the motion and send the case to trial simply to allow the opposing party to cross-examine the affiants or otherwise test their credibility.’” (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636.)
DISPOSITION
The judgment is affirmed. Lions shall recover its costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.