Foss v. El Yousef
Filed 6/6/07 Foss v. El Yousef CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
BRANDON FOSS, a Minor, etc., et al., Plaintiffs and Appellants, v. SABA JAMAL EL YOUSEF et al., Defendants and Respondents. | E039348 (Super.Ct.No. RCV 073136) OPINION |
APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.
Gary Rand & Suzanne E. Rand-Lewis for Plaintiffs and Appellants.
Snyder, Walker & Mann, Michael R. Snyder, Douglas K. Mann, and Kathleen A. Stosuy for Defendants and Respondents.
1. Introduction
At age 16, plaintiff Brandon Foss was diagnosed with a spinal tumor. Plaintiffs, Foss and his parents, appeal from the trial courts judgment in favor of defendants[1]on plaintiffs claim for medical negligence and the related claim of fraud by concealment.
Defendants filed one motion for summary adjudication and two motions for summary judgment. After a considerable amount of procedural wrangling, the court granted all three motions and entered judgment in favor of defendants.
Plaintiffs appeal and we affirm the judgment. After hearing on defendants motion for sanctions, we deny the motion.
2. Factual and Procedural Background
The following facts are not disputed, or not effectively disputed. After a sports accident, Foss came to San Antonio Community Hospital on June 23, 2002, complaining of pain, numbness, and weakness in his lower abdomen, pelvis, groin, buttocks, and legs. He was treated by the emergency room physician, who diagnosed a possible fracture of the coccyx. The morning after Foss was discharged, El-Yousef, a radiologist, reviewed his X-rays and did not observe a fracture. The X-rays showed the areas just above the L-3/L-4 and L-5-S1 intervertebral disc spaces, which are in turn located above the coccyx.
On June 26, Foss experienced paralysis beginning at the hips. He was diagnosed with acute paraplegia secondary to a tumor at the L-1/L-2 level of his spine. The area covered by the X-rays interpreted by El-Yousef was a different location than the location of the tumor.
All three of defendants motions for summary resolution were supported by a similar declaration from Dr. John Anderson, a radiologist, who opined El-Yousef did not conceal Fosss condition from plaintiffs and that El-Yousef acted within the standard of care for a practicing radiologist.
Plaintiffs offered no opposing medical declaration. Instead, plaintiffs twice tried to take Andersons deposition. Both times, the trial court granted defendants motion to quash plaintiffs deposition notice. The court ultimately granted defendants motions for summary adjudication and summary judgment.
3. Standard of Review
An order granting a motion to quash is reviewed for abuse of discretion. (National Football League Properties, Inc. v. Superior Court (1998) 65 Cal.App.4th 100, 106-107.) Rulings for summary judgment and summary adjudication are subject to de novo review. (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 641; Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1282, 1290.)
The party appealing a grant of summary judgment/adjudication must affirmatively demonstrate error and . . . point out the triable issues the [party] claims are present by citation to the record and any supporting authority. (Christoff v. Union Pacific Railroad Co. (2004) 134 Cal.App.4th 118, 126; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466.) Plaintiffs appellate briefs do not satisfy this requirement. An example of the shortcomings that exist throughout are the 11 pages of procedural summary that do not supply any useful information of substance. Another example is the appellants statement of facts which contains no citations to facts in the record but instead refers entirely to the allegations of plaintiffs complaint and their memorandum of points and authorities opposing defendants motion for summary adjudication. Similar problems are present in plaintiffs appellate discussion of their opposition to defendants motions in which plaintiffs fail to identify particularly and by proper citation to the record any evidence which creates a material, triable issue of fact for the trial court to decide or this court to recognize.
Instead, plaintiffs rely on assertions made in their own points and authorities and a general reference to declarations by their lawyer, Suzanne Rand-Lewis and by plaintiff Ronald Foss, Brandons father. None of these references respond directly and pertinently to the supporting evidence contained in Andersons declaration and presented by defendants in their motions. Nor do plaintiffs supply this court with the deposition of El-Yousef and the exhibits which apparently formed the basis for their opposition to defendants motions.
Because of the inadequacy of plaintiffs appellate presentation, we cannot undertake a sufficient de novo review of the record. (Rancho Santa Fe Association v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) Notwithstanding these limitations, we will discuss briefly plaintiffs contention they should have been allowed to depose Anderson and also the merits of defendants three motions.
4. Discussion
Plaintiffs rely on the following holding to argue that the court should have allowed them to depose Anderson and should not have granted summary judgment in favor of defendants: [U]nder the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert. [] . . . [] In reaching this conclusion we caution that the process should not be utilized to turn summary proceedings into mini-trials. Whether to grant discovery in a given case falls within the sound discretion of the trial court based upon all of the facts presented. There must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question. (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540-1541.)
The chief point in the St. Mary case is the need to present objective facts creating a significant question regarding the foundational validity of an expert declaration. St. Mary involved competing expert declarations. The declaration of plaintiffs expert in St. Marys was shown to be based on factual errors that undermined its validity. No such showing was made here. Plaintiffs did not submit an opposing expert declaration and did not establish any factual errors in Andersons declarations. Hence, the trial court did not abuse its discretion in granting defendants motions to quash plaintiffs deposition notices for Anderson.
Having dispensed with the argument that plaintiffs should have been allowed to depose Anderson, we summarily address the merit of defendants three motions.
The trial court properly granted the summary adjudication motion, which was directed at the fraudulent concealment cause of action, because plaintiffs presented no evidence that defendants concealed or suppressed any material facts. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503; Marketing West, Inc. v. Sanyo Fisher (USA) Corporation (1992) 6 Cal.App.4th 603, 612-613.) The X-rays interpreted by El-Yousef did not include the area where the tumor was located. Therefore, El-Yousef had no information whatsoever about the tumor that he could have concealed or revealed to plaintiffs -- even if he had a duty to do so. As a consulting secondary physician, he had no such duty. (Townsend v. Turk (1990) 218 Cal.App.3d 278, 286-287.)
The trial court also properly granted the two summary judgment motions because plaintiffs did not present any expert evidence of the elements of medical negligence, i.e., breach of duty to meet the applicable standard of care, causing injury. (Landeros v. Flood (1976) 17 Cal.3d 399; Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) Plaintiffs cannot present any such evidence because the tumor was located outside the area of the X-rays interpreted by El-Yousef. Andersons declarations confirm this indisputable fact and confirm his opinion that defendants acted within the standard of care.
Our decision to affirm the judgment makes moot any issue regarding the trial courts ruling on plaintiffs motion to tax costs. The only argument made by plaintiffs is that the ruling should be reversed because the judgment should be reversedan argument we obviously reject.
5. Sanctions
Defendants filed a motion for appellate sanctions. (Code Civ. Proc., 907; Cal. Rules of Court, rule 8.276(e).) Plaintiffs filed opposition.
As has been discussed, plaintiffs offered no evidence of defendants medical negligence. The tumor suffered by Foss was in a different location on the spine then the area of the X-rays interpreted by El-Yousef. Plaintiffs offered no expert declaration positing some other basis for liability against El-Yousef. It is plausible to say no reasonable attorney could have found merit in the complaint or the appeal. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; Simonian v. Patterson (1994) 27 Cal.App.4th 773, 785.)
In addition, just as they did in the trial court below, plaintiffs make a deficient presentation on appeal. To paraphrase language from another case, plaintiffs assert little, if any, evidence or legal support for any of their causes of action: The briefs state the record loosely, cite strained authorities, and discuss legal principles in a vacuum. . . . [T]he case is replete with inconsistent conclusions and/or evidentiary allegations, cradled in opportunism to circumvent . . . clear defenses . . . [] . . . many lawyers take advantage, and must share responsibility for the flood of lawsuits launched on gossamer-thin evidentiary support and warped analysis of applicable legal theories. (Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 996.)
Nevertheless, because this appellate panel cannot unanimously conclude that sanctions are justified, we do not award them here.
6. Disposition
The judgment is affirmed. The prevailing parties shall recover their costs on appeal. Defendants motion for sanctions is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Hollenhorst
J.
We concur:
s/Ramirez
P.J.
s/King
J.
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[1] Defendants who are respondents in this appeal are Saba J. El-Yousef, Saba J. El-Yousef, M.D., Inc. and San Antonio Radiological Medical Group, collectively El-Yousef.
