Fores v. Sup. Ct

Filed 6/21/06 Fores v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after superior court granted summary judgment for one defendant. Joan M. Lewis, Judge. Petition granted.

FACTUAL AND PROCEDURAL BACKGROUND

Teri and Joaquin Flores filed a wrongful death action against Scripps Mercy Hospital and Dr. Alisa Williams for professional negligence in treating their baby daughter, who died one day after she was born. Plaintiffs later added other defendants including Dr. Riad Mardoum, the neonatologist on call on the day of the delivery. Paged after Dr. Ilia Christy, a third-year resident who headed the Neonatal Advanced Life Support Team, tried without success to intubate the baby, Dr. Mardoum arrived in the operating room within one minute of receiving the page, intubated the 8 to 10-minute-old baby and continued life saving techniques for another 12 minutes until he felt a feeble heart beat.

Dr. Mardoum moved for summary judgment relying on expert opinion that he complied with the standard of care. Plaintiffs opposed the motion with a declaration from Dr. Chaunpit Moser, a professor at the University of California (Irvine), board-certified in pediatrics and pediatric pulmonology, who stated she had "attended several hundred births for the purpose of providing emergency care to a neonate." In his reply, Dr. Mardoum argued Dr. Moser did not qualify as an expert--her declaration could not be considered because Dr. Moser did not attach her curriculum vitae or provide sufficient information about the nature and timing of her professional education, training and experience. Two days after the reply was filed, plaintiffs faxed a copy of Dr. Moser's extensive curriculum vitae to defense counsel and later lodged a copy with the court.

In its tentative ruling, the court sustained Dr. Mardoum's objections to Dr. Moser's qualifications, granted summary judgment because of the lack of competent evidence, but stated, "if Dr. Moser were qualified [the court] would have found triable issues of fact." At argument, the court denied a request for a continuance to allow plaintiffs to get the curriculum vitae properly before the court, confirmed the tentative, and granted summary judgment for Dr. Mardoum.

Plaintiffs followed with this petition, arguing the court abused its discretion in excluding the Moser declaration and refusing to consider the lodged curriculum vitae or continue the matter. We stayed the proceedings, requested a response to the petition, and gave Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

"[S]ummary judgment is a drastic measure which deprives the losing party of trial on the merits." (Bunzel v. American Academy of Orthopaedic Surgeons (1980) 107 Cal.App.3d 165, 169.) To mitigate the statute's harshness, the drafters included a provision--Code of Civil Procedure section 437c, subdivision (h)--that "virtually mandate[s]" continuances, which would otherwise be deemed matters vested in the broad discretion of the trial court. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) "[T]he interests at stake [on summary judgment] are too high to sanction the denial of a continuance without good reason." (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.)

The trial court struck Dr. Moser's declaration solely because it determined the doctor had not provided sufficient information about her qualifications and the lodgment by plaintiffs' counsel was not appropriate to bring the curriculum vitae before the court. Plaintiffs requested a short continuance so they could authenticate the curriculum vitae and get it properly before the court. Where, as here, plaintiffs had previously served and lodged the curriculum vitae in an attempt to satisfy any concerns raised in the reply about Dr. Moser's qualifications, the court was aware from the lodgment that a detailed curriculum vitae existed, and the court determined that, had Dr. Moser qualified, her declaration would have created triable issues of fact, it was an abuse of discretion to deny the continuance and grant summary judgment. Denial of a continuance to correct a technical defect such as this one elevates form over substance and is inimical to the mandate that courts use summary judgment with caution to avoid depriving a party of the right to trial on the merits.

Dr. Mardoum does not address the court's refusal to continue the matter. Instead, he argues, regardless of the basis for the evidentiary ruling (i.e., the correctness of striking the declaration for failure to attach a curriculum vitae), we should deny relief because there was no foundation for Dr. Moser's opinion that Dr. Mardoum had a legal duty to be in the operating room at the time of the delivery or to supervise resident Dr. Christy. Dr. Mardoum maintains the "real nub" of plaintiffs' complaint is the hospital's liability because hospital protocols do not require that an on-call neonatologist, absent an advance request, be in the operating room before receiving the page.

However, in finding triable factual issues, the court referred to paragraph 10 of Dr. Moser's declaration. In paragraph 10, Dr. Moser concluded Dr. Mardoum violated the standard of care by what he did once he got into the operating room--i.e., he should have immediately inserted an umbilical line to give the baby glucose, blood, volume and medications--and not by what he did (or did not do) before he arrived. As such, the argument that there was no foundation for Dr. Moser's opinion that Dr. Mardoum should have been present in the operating room before receiving the page is not essential to the lower court's finding of triable issues to defeat summary judgment or to our analysis of the issue.

Because the relevant facts are not in dispute, the law is well-settled and the matter is urgent requiring acceleration, we conclude a peremptory writ in the first instance is proper. (Code of Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its May 19, 2006 order granting Dr. Mardoum summary judgment, enter an order granting plaintiffs a continuance, and conduct further proceedings. The stay issued by this court on June 5, 2006, is vacated. Plaintiffs are entitled to costs in this writ proceeding. The opinion is made final immediately as to this court. (Cal. Rules of Court, rule 24(b)(3).)

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

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