Melchor v. Pena























Filed 7/30/10 Melchor v. Pena CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FIVE




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>JOSE MELCHOR et al., > Plaintiffs and Appellants, >v. >JORGE PENA et al., > Defendants and Respondents.

A124449 ( >Alameda > County Super. >Ct. > No. RG06302527)

Jose
Melchor and Natalie Melchor, by and through their guardians ad litem, Martin Melchor
and Ramona Melchor, appeal from a judgment entered after the court granted the
summary judgment motion of respondents Jorge Pena, M.D. and Gina Marie Adair,
M.D. Appellants contend: a triable
issue of material fact precluded the grant of summary judgment; the court
erred in permitting the summary judgment hearing to be heard on less than the
statutory-required notice; and the court erroneously denied their request for a
continuance of the motion hearing. We
will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

In
December 2006, Jose and Natalie Melchor, through their guardians ad litem,
filed a complaint alleging professional
negligence on the part of numerous defendants. Appellants alleged that the defendants'
negligent examination, diagnosis, and treatment resulted in Jose and Natalie
suffering herpes type II meningoencephalitis and developing cerebral palsy.[1]

On
January 24, 2008,
appellants substituted Dr. Pena in the place of Doe 1. The complaint was later amended to add Dr.
Adair as a defendant.

A. Pena's
and Adair's Motion for Summary Judgment

Drs.
Pena and Adair filed a joint motion for summary judgment, contending that
appellants could not establish that the doctors breached their duty of care or
contributed to the alleged injury. In
their statement of undisputed material facts, Drs. Pena and Adair asserted
the following based on supporting evidence.


Ramona
Melchor became pregnant with twins, appellants Jose and Natalie, in 2001. Her primary physician for prenatal care, Dr.
Indira Fulara, conducted a standard prenatal consultation, including a detailed
medical history, and obtained the standard prenatal panel of laboratory
tests. Ramona's laboratory results as to
sexually transmitted diseases gonorrhea and Chlamydia were negative.

In
response to queries by both Dr. Fulara and a perinatal health worker, Ramona
denied that she or her husband had any history of sexually transmitted diseases,
including herpes. Ramona never told any
health care provider at Family Care Center Merced, Mercy Medical Center Merced
(Mercy), or University Medical
Center (University) that she had
sores on her genitals before Jose and Natalie were born.

On
January 18, 2002, Ramona
reported to Mercy that she was having contractions. She was transferred to University for a
higher level of care. The transfer
report stated that Ramona had â€