Jones v. Kaiser Foundation Health Plan
Filed 8/8/13 Jones v. Kaiser Foundation Health Plan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
LYNN SCOTT JONES,
Plaintiff
and Appellant,
v.
KAISER FOUNDATION HEALTH PLAN, INC., et al.,
Defendants
and Respondents.
E056219
(Super.Ct.No. CIVDS1008100)
OPINION
APPEAL from the Superior
Court of
Bernardino County. John
M. Pacheco, Judge. Affirmed.
The Thomas Law Group, Stephen J.
Thomas and Tim C. Lin for Plaintiff and Appellant.
La Follette, Johnson, Dehaas, Fesler
& Ames, Bradley J. McGirr and John C. Lender for Defendants and
Respondents.
On June 10, 2010, plaintiff, Lynn
Scott Jones, filed a medical
malpractice complaint against defendants, Kaiser Foundation Health Plan,
Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical
Group, and Dr. Robert Yu, a Kaiser doctor (collectively, Kaiser).
On May 4, 2011,
Kaiser filed a motion for summary judgment.
The hearing on the motion was set for August 25, 2011.
On August 11, 2011,
Jones filed a memorandum of points and authorities and a statement of
undisputed material facts in opposition to the motion for summary
judgment. The memorandum also requested
a continuance “because essential evidence currently exists but cannot be
presented at this time.†(Capitalization
omitted.)
On August 22, 2011, Jones filed an
25, 2011
hearing. Kaiser objected, but the motion
was granted, and the hearing was continued until October 24, 2011.
On October 24, 2011, Jones requested a further continuance to
obtain an expert medical opinion. The
court denied the request and granted Kaiser’s summary judgment motion.
On November 3, 2011, Jones filed a motion for
reconsideration. The motion was heard on
January 18, 2012, and the motion for reconsideration was denied. Jones appeals from the ensuing judgment.
ISSUES
On appeal, Jones presents two
issues. First, he argues the trial court
abused its discretion by denying a second continuance at the October
24, 2011 hearing and
then granting the summary judgment motion.
Second, he contends the trial court abused its discretion when it denied
his motion for reconsideration on January 18, 2012.
KAISER’S
MOTION FOR SUMMARY JUDGMENT
The summary judgment motion,
filed May 4, 2011,
was based on the grounds that “this action has no merit and there is no triable
issue of material fact . . . .â€
The motion was supported by the declarations of two doctors who
determined that the treatment of Jones complied with the applicable standard of
care. Dr. Howard Tung, a neurosurgeon,
opined that the treatment of Jones at Kaiser was within the standard of care. Dr. Richard Johnson, a family practice physician,
declared that the treatment of Jones at Kaiser “was, at all times, provided in
a manner which complied with the standard of care in the community, and to a
reasonable degree of medical probability was not the cause of any alleged
. . . .â€
JONES’S
RESPONSE TO THE SUMMARY JUDGMENT MOTION
In response to the summary
judgment motion, Jones argued that there were genuine issues of material fact
that preclude summary judgment. To create
such issues, and to support the contention that the treatment of Jones was
below the standard of care, Jones relied on the declaration of David Payne,
M.D., a “diplomate of the American Board of Orthopaedic Surgery and a fellow of
the American Academy of Orthopaedic Surgery.â€
Dr. Payne’s declaration would
normally be sufficient to raise triable factual issues. The problem for Jones was that Dr. Payne had
not signed his declaration by August 11, 2011, the date of the opposition
points and authorities. An unsigned
version of the declaration was therefore filed.
The unsigned declaration
recites that Dr. Payne is “a fellowship-trained spine surgeon,†who is
“familiar with the standard of care for family practice physicians in the
Southern California community.†He
examined Jones on September 21, 2009. At
that time, Jones was complaining of
result of a 25- to 30-foot fall he had suffered on December 22, 2008. Dr. Payne opined that the treatment by Kaiser
was below the standard of care “in that Mr. Jones should have received
immediate surgical intervention to repair the multiple fractures in his
back. Furthermore, to a reasonable
degree of medical probability [Kaiser’s] failure to provide the proper standard
of care caused additional harm and injury to [Jones].â€
Since Dr. Payne’s declaration
was still unsigned on August 11, 2011, the points and authorities submitted by
Jones argued that “a continuance . . . should be granted because
essential evidence currently exists but cannot be presented at this time.†(Capitalization omitted.)
Jones renewed the request on
August 22, 2011, by filing an ex parte motion under Code of Civil Procedure
section 437c, subdivision (h),
the August 25, 2011 hearing. The
supporting declaration and accompanying exhibits establish that
Dr. Payne’s deposition was scheduled for September 5, 2011. Kaiser objected, but the motion was granted,
and the hearing was continued until October 24, 2011.
THE OCTOBER
24 HEARING
On October 17, 2011, Kaiser
filed a reply brief for the October 24, 2011 hearing, pointing out that Jones
had still not provided any expert medical testimony in opposition to the motion
for summary judgment. Accordingly, Kaiser
argued that there were no disputed triable issues of material facts, and it was
therefore entitled to summary judgment.
The trial court’s tentative
decision was to grant the motion for summary judgment. The court found that Jones “fail[ed] to set forth
facts demonstrating the reason such [evidence] was not obtained sooner and why
such evidence cannot be presented at this time, establishing a likelihood that
controverting evidence may exist, and providing an estimate of the time
necessary to obtain such evidence.â€
At the hearing, Kaiser’s
attorney emphasized that the motion had been filed five months earlier, and
Jones’s counsel had still not obtained an expert declaration. Jones’s counsel had also set a deposition for
Dr. Payne on September 5, 2011, but it had not taken place. Kaiser’s attorney argued that Jones and his
attorneys had not given any reason why the deposition did not go forward, nor
had they explained why Dr. Payne had still not signed his declaration.
The trial court subsequently
granted Kaiser’s motion for summary judgment.
THE MOTION
FOR RECONSIDERATION
On November 3, 2011, Jones
filed a motion for reconsideration. The
motion was based on the theory that he had now obtained Dr. Payne’s signature
on his declaration. Jones stated: “[Jones] could not previously present the
declaration of Dr. Payne because [Jones] was unavailable largely due to his
injuries and counsel has had ongoing difficulty communicating with Dr. Payne’s
office.†Jones also stated that he had
surgery on October 17, 2011, and “[s]ince the surgery, [Jones] has recovered
and was able to retain an expert and obtain his declaration in opposition to
[Kaiser’s] motion for summary judgment.â€
Since Dr. Payne’s declaration established triable issues of material
fact, Jones asked the court to reconsider the granting of the summary judgment
motion “based on the new facts and circumstances presented.â€
Kaiser opposed the request for
reconsideration on grounds that it was not new evidence. Kaiser’s counsel pointed out that the signed
declaration was dated either October 14 or 19.
Thus, the declaration was signed at least five days before the October
24 hearing, and Jones did not explain why it had not been presented at the
hearing. Kaiser also argued that the
declaration was inadequate to establish a violation of the standard of care by
Kaiser.
title="">[2]
The motion for reconsideration
was heard on January 18, 2012. Jones’s
attorney argued that the signed document was a new document because it was not
previously considered by the court. Even
though it was signed before the hearing, counsel stated that Jones’s attorneys
did not have custody of it because “[Dr. Payne] does not like attorneys.â€
The trial court subsequently
denied the motion for reconsideration.
Judgment was entered accordingly, and this appeal followed.
THE DENIAL
OF THE SECOND MOTION FOR A CONTINUANCE
As noted ante, Jones argues that the trial court abused its discretion by
denying a second continuance at the October 24, 2011 hearing and then granting
the summary judgment motion.
Jones relies on section 437c,
subdivision (h). That section
states: “If it appears from the
affidavits submitted in opposition to a motion for summary judgment or summary
adjudication or both 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 affidavits to be obtained or discovery to be
had or may make any other order as may be just.
The application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.â€
Jones cites
Cal.App.4th 246 (Cooksey). In that case, the plaintiff appealed from an
order denying a continuance in the same context as this case. The court held that “the trial court’s denial of appellant’s request for a continuance under
section 437c, subdivision (h) was not an abuse of discretion because appellant
failed to make a good faith showing as to what facts essential to oppose
summary judgment may have existed and why such facts could not have been
discovered sooner. We further hold that
in determining whether to grant to a party responding to a summary
judgment motion a continuance for discovery under section 437c,
subdivision (h), the trial court may consider whether that party has been
diligent in completing discovery.â€
(Id. at p. 251.)
Applying the statute, the court said:
“The statute mandates a continuance of a summary judgment hearing upon a
good faith showing by affidavit that additional time is needed to obtain facts
essential to justify opposition to the motion.
[Citations.] Continuance of a
summary judgment hearing is not mandatory, however, when no affidavit is
submitted or when the submitted affidavit fails to make the necessary showing
under section 437c, subdivision (h). [Citations.]
Thus, 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. [Citation.]â€
(Cooksey, supra, 123 Cal.App.4th at pp. 253-254.)
Specifically, the court held that lack of diligence may be a ground
for denying a request for continuance: “There must be a justifiable reason why the
essential facts cannot be presented. An
inappropriate delay in seeking to obtain the facts may not be a valid reason
why the facts cannot then be presented.
The statute itself authorizes the imposition of sanctions for
declarations presented in bad faith or solely for purposes of delay. [Citation.]
A good faith showing that further discovery is needed to oppose summary
judgment requires some justification for why such discovery could not have been
completed sooner.†(Cooksey, supra, 123
Cal.App.4th at p. 257.)
The trial court’s tentative
ruling in this case discusses a declaration submitted by Jones and found it
inadequate to raise a triable issue of fact.
Accordingly, the court found that Jones had failed to submit any
opposing expert testimony “establishing, to a reasonable medical probability, a
defendant’s acts or omissions were a substantial factor in causing [Jones’s]
injuries. [Citation.]â€
With regard to the continuance
request, the court discussed Jones’s statement that he was scheduled to have
surgery on October 17, 2011, but it had been delayed. Jones argued that, as a result of his medical
problems, he had been unable to hire an expert.
The court found that the prior continuance was for the purpose of taking
Dr. Payne’s deposition. However, the
deposition had not been taken, and Jones had not explained why the deposition
had not been taken.
The court found that the
statements in Jones’s declaration were inadequate because he failed to set
forth facts demonstrating the reason why the evidence was not obtained sooner,
why such evidence could not be presented at the hearing, and did not show a
likelihood of the existence of controverting evidence, together with an
estimate of the time necessary to obtain such evidence.
Thus, the trial court was
amply justified in finding that the submitted declaration of Jones failed to
make the necessary showing under section 437c, subdivision (h). No explanation was given for the continued
failure of Dr. Payne to sign the declaration, and no reason was given for the
cancellation of Dr. Payne’s deposition on September 5, 2011. It therefore appeared that no action had been
taken from the time of the first continuance (August 25, 2011) to the time of
the continued hearing (October 24, 2011).
As discussed
faith showing that further discovery is needed to oppose summary judgment
requires some justification for why such discovery could not have been
completed sooner.†(Cooksey, supra, 123
Cal.App.4th at p. 257.) In the present
case, no justification was found for not obtaining Dr. Payne’s signature in a
timely manner or failing to take his deposition. Accordingly, the trial court did not abuse
its discretion in denying a further continuance and proceeding to decide the
summary judgment motion on the documents before it.
THE MOTION
FOR RECONSIDERATION
As described
filed on November 3, 2011. It relies on
section 1008, which authorizes such a motion when a party claims new or
different facts, circumstances, or law to justify reconsideration of the prior
order.
title="">[4]
In seeking reconsideration,
Jones relies on Bahl v. Bank of America (2001)
89 Cal.App.4th 389 (Bahl). In that case, the plaintiff requested a
continuance of a summary judgment motion hearing because discovery was
continuing. (Id. at p. 392.) The
defendant filed an opposition to the continuance and then produced over 600
pages of documentation. (
The trial court denied the request for a continuance and granted the
motion for summary judgment. (
The appellate court reversed, holding that “[p]ublic policy dictates
that disposition on the merits be favored over judicial efficiency.†(Ibid.)
The court found that “‘an
opposing party can compel a continuance of a summary judgment motion’ by making
a declaration meeting the requirements of section 437c, subdivision (h). [Citation.]â€
(Bahl, supra, 89 Cal.App.4th at pp. 395-396.) This means that the party must show that
facts essential to justify opposition may exist. (Id.
at p. 397.) “When lack of diligence
results in a party’s having insufficient information to know if facts essential
to justify opposition may exist, and the party is therefore unable
to provide the requisite affidavit under Code of Civil Procedure section
437c, subdivision (h), the trial judge may deny the request for
continuance of the motion.
[Citations.]†(
Of course,
for reconsideration. Under section 1008,
the moving party must show new facts or information. The only new fact alleged here is that Dr.
Payne had signed his declaration.
However, as Kaiser pointed out, the signed declaration is dated more
than five days prior to the continued summary judgment motion hearing. It was therefore not new evidence. The unsigned version of Dr. Payne’s
declaration had also been submitted to justify the first
continuance on August 11, 2011, and the ex parte request for a continuance
filed on August 22, 2011.
“The party seeking reconsideration must provide not just new evidence
or different facts, but a satisfactory explanation for the failure to produce
it at an earlier time.†(
1441, 1457.) Thus, a motion for
reconsideration was properly denied when the moving party failed to provide an
adequate explanation for his failure to depose an important witness. (Jones
v. P.S. Development Co., Inc. (2008)
166 Cal.App.4th 707, 725, overruled on other grounds in Reid v. Google, Inc.
The trial court cited Garcia v.
Hejmadi (1997) 58 Cal.App.4th 674.
In that case, the court referred to the need to show a satisfactory
explanation for failing to provide the evidence sooner. (Id.
at p. 690.)
The only argument made in support of the motion for reconsideration
was that Dr. Payne had now signed his declaration. The accompanying declaration, filed by
Stephen Thomas, one of Jones’s attorneys, recites Jones’s medical difficulties
and concludes by saying, “[s]ince the surgery, Mr. Jones has recovered and was
able to retain Dr. Payne as an expert and obtain his declaration in opposition
to [Kaiser’s] motion for summary judgment.â€
But as Kaiser pointed out: “It
is the responsibility of [Jones’s] attorney to obtain the necessary experts,
and obtain declarations to oppose a motion for summary judgment.†Jones and his attorneys simply failed to do
so, and their failure provided ample grounds for the trial court to exercise
its discretion and conclude that “[i]n [Jones’s] Reply there is no discussion
of any of the above issues which are certainly significant and should have been
addressed. The failure to do so is fatal
to [Jones’s] present motion. As such
[Jones] has failed to meet his burden and his motion shall be denied.†We agree.
DISPOSITION
The judgment, including the order denying reconsideration, is
affirmed. Respondents to recover their
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
name="_ftn2" title=""> [2] Jones
had been treated by a non-Kaiser hospital for approximately three weeks after
the accident. Dr. Payne’s opinion was
that Jones “should have been immediately
recommended for surgical intervention to repair the multiple fractures in his
spine.†(Italics added.) Kaiser argued that this means that the
non-Kaiser hospital was the entity that violated the standard of care.
