Shelton v. Lions Eye Inst. For Transplant and Research




Filed 3/9/11 Shelton v. Lions Eye Inst. For Transplant and Research CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

MARTHA J. SHELTON, Plaintiff and Appellant, v. LIONS EYE INSTITUTE FOR TRANSPLANT AND RESEARCH, INC., Defendant and Respondent.

G042372 (Super. Ct. No. 07CC05160) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.
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.
* * *

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))[1]; 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.

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 â€