Andrews v. Gillespie
Filed 4/26/13 Andrews v. Gillespie CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
LESLIE
ANDREWS et al.,
Plaintiffs and Appellants,
v.
WILLIAM
GILLESPIE,
Defendant and Respondent.
E053880
(Super.Ct.No. RIC466688)
OPINION
APPEAL from
the Superior Court of Riverside County.
John Vineyard, Judge. Affirmed.
Equity Law
Group and Lotfy Mrich for Plaintiffs and Appellants.
Brown &
Ritner and Deanna M. Brown for Defendant and Respondent.
Plaintiffs
and appellants Leslie Andrews and Holly Fallon (plaintiffs) appeal from a
summary judgment in favor of defendant William Gillespie, M.D., in a lawsuit
alleging the wrongful death of their 18-year-old son, Eric Andrews. The trial court denied plaintiffs’ request to
continue the summary judgment motion
because plaintiffs failed to specify what admissible evidence they expected to
be able to obtain if the continuance were granted. The trial court granted the summary judgment
motion because plaintiffs failed to produce admissible evidence showing the
existence of triable issues of material fact concerning plaintiffs’ claims that
the medical care Gillespie provided
their son fell below the applicable standard of care.
We will
affirm the judgment.
FACTUAL AND PROCEDURAL
HISTORY
Plaintiffs’
operative fourth amended complaint alleged multiple causes of action arising
from the death of plaintiffs’ 18-year-old son, Eric Andrews (Eric). The complaint alleged that Eric was shot and
killed by Riverside County Sheriff’s deputies on February 28,
2006, following
a 911 call by plaintiff Holly Fallon saying that her son needed help. Eric had been admitted to Aurora Charter Oak Hospital earlier in February on an involuntary
hold after threatening suicide. He was
suicidal because of the break-up of his relationship with a girlfriend. The complaint alleges that Eric was
negligently discharged from the hospital by his attending
Gillespie
brought a motion for summary judgment as to the single remaining cause of
action alleged against him, for medical malpractice and wrongful death. The trial court granted the motion, and
judgment was entered for Gillespie.
Plaintiffs
filed a timely notice of appeal.
LEGAL ANALYSIS
1.
SUMMARY JUDGMENT WAS PROPERLY
GRANTED
Standard
of Review
We review orders granting motions
for summary judgment de novo, applying
the same rules the trial court was required to apply in deciding the
motion. (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009)
173 Cal.App.4th 740, 753.)
A defendant
moving for summary judgment has the burden of demonstrating as a matter of law,
with respect to each of the plaintiff’s causes of action, that one or more
elements of the cause of action cannot be established, or that there is a
complete defense to the cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2);
25 Cal.4th 826, 849 (Aguilar).) If a defendant’s moving papers will support a
finding in its favor on one or more elements of the cause of action or on a
defense, the burden shifts to the plaintiff to present evidence showing that a
triable issue of material fact actually exists as to those elements or the
defense. (Aguilar, at p. 849.) In order to meet that burden, “‘[t]he
plaintiff . . . may not rely upon the mere allegations or denials’ of his
‘pleadings to show that a triable issue of material fact exists but, instead,’
must ‘set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.’ [Citation].â€
(Ibid., quoting former § 437c,
subd. (o)(2), now subd. (p)(2).)
Further, the opposing party must produce admissible evidence
demonstrating the existence of a triable issue of material fact. (§ 437c, subds. (d), (p).) We review a trial court’s evidentiary rulings
on summary judgment for abuse of discretion.
(DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)
Producing Evidence That Gillespie’s Care of Their Son Fell Below the Applicable
Standard of Care.
To prevail
on a cause of action for medical negligence, a plaintiff must adduce the
testimony of an expert witness to establish the standard of care against which
a medical practitioner’s actions are measured and that the practitioner’s care
fell below that standard, resulting in injury or death: “‘“The standard of care against which the
acts of a physician are to be measured is a matter peculiarly within the
knowledge of experts; it presents the basic issue in a malpractice action and
can only be proved by their testimony [citations], unless the conduct required
by the particular circumstances is within the common knowledge of the
layman.†[Citations.]’ [Citations.]â€
(Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)
In support
of his motion, Gillespie submitted the declaration of an expert, Louis Alvarez,
M.D. The trial court found Alvarez’s
declaration sufficient to sustain Gillespie’s burden of proof in establishing
that the care he provided was within the applicable standard of care and was
not the legal cause of Eric’s death, and implicitly found that the declaration
was sufficient to shift the burden of proof to plaintiffs to produce evidence
that Gillespie’s care was not within the applicable standard of care and was
the legal cause of Eric’s death.
Plaintiffs
did not include Alvarez’s declaration in the record on appeal. It is the plaintiffs’ burden to produce a
record on appeal which clearly demonstrates error. (Aguilar
v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) The omission of Alvarez’s declaration leaves
us with no basis upon which to reach any conclusion other than that the trial
court properly found that the burden shifted to plaintiffs.
Plaintiffs
also did not produce a declaration of a medical expert which controverted the
declaration of Gillespie’s expert. On
appeal, plaintiffs appear to contend that such a declaration was unnecessary
because Gillespie’s alleged negligence in discharging Eric prematurely was an
obvious mistake to which a layman could testify. However, “The ‘common knowledge’ exception is
principally limited to situations in which the plaintiff can invoke the
doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a
matter of common knowledge and observation that the consequences of
professional treatment were not such as ordinarily would have followed if due
care had been exercised.’ [Fn.
omitted] [Citation.] The classic example, of course, is the X-ray
revealing a scalpel left in the patient’s body following surgery. [Citation.]â€
(Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p.
1001.) Plaintiffs did not cite any
evidence or authority which supports the contention that it would be obvious to
a layman that Gillespie discharged Eric prematurely or that it was reasonably
foreseeable to a layman that discharging him at that point in his treatment
would be likely to lead to his injury or death.
Accordingly, the trial court did not err in finding that plaintiffs
failed to meet their burden of showing the existence of a triable issue of
material fact.
2.
THE TRIAL COURT DID NOT ABUSE
ITS DISCRETION IN DENYING PLAINTIFFS’ REQUEST FOR A CONTINUANCE FOR FURTHER
DISCOVERY
In their
opposition to the motion, plaintiffs stated that the court could, as an
alternative to granting summary judgment, issue an order approving plaintiffs’
application to conduct further discovery.
The trial court denied the request because plaintiffs failed to submit a
declaration which satisfied the requirements of section 437c, subdivision (h).
In
pertinent part, section 437c, subdivision (h), provides: “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.†A
continuance is “virtually mandated†upon a proper showing. (Bahl
v. Bank of America (2001) 89 Cal.App.4th 389, 395.)
It is not
clear whether plaintiffs filed a separate motion for a continuance. If they did, it is not in the record. In any event, the declaration of counsel
which is in the record on appeal, attached to the opposition to the summary
judgment motion, does not meet the requirements of section 437c, subdivision
(h). In his declaration, counsel stated
only that he had “scheduled multiple contacts to obtain expert witnesses that
will lend more credence to our malpractice, negligence, and wrongful death
causes of action†but that “the expert witnesses have failed to materialize by
the deadline date [for] this pleading.â€
The original complaint in this case was apparently filed on February
27, 2007. If counsel had not been able in over four
years to find an expert who would support his case, it does not appear that
“facts essential to justify opposition [to the summary judgment motion] may
exist.†(§ 437c, subd. (h).) On the contrary, it appears that such facts
do not exist. Accordingly, the court did
not abuse its discretion in denying the continuance.
DISPOSITION
The
judgment is affirmed. William Gillespie
is awarded costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
Plaintiffs did not include the operative fourth amended complaint in the
record on appeal. Consequently, we have
taken the factual history from our opinion in the related case of
Charter
Oak
Hospital (Sept. 18, 2012, E053311) [nonpub. opn.]. In that case, we affirmed the summary
judgment in favor of Aurora Charter Oak Hospital on the wrongful death cause of action,
based on the evidence that Gillespie was not an employee of the hospital. Demurrers as to other causes of action were
sustained without leave to amend. (
further statutory references will be to the Code of Civil Procedure unless
otherwise indicated.
