Doe v. Lyddon
Filed 5/27/10 Doe v. Lyddon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
JANE DOE, Plaintiff and Appellant, v. JOHN ARTHUR LYDDON, Defendant and Respondent. | G042366 (Super. Ct. No. 30-2008-00108348) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Reversed.
Mathews Funk & Associates, Stanton T. Mathews, Ronald B. Funk and Marcia E. Depew for Plaintiff and Appellant.
Liebhaber & Masserman and Terri L. Masserman for Defendant and Respondent.
Plaintiff Jane Doe appeals the judgment entered after the trial court granted defendant John Arthur Lyddons motion for summary judgment on plaintiffs complaint alleging defendant transmitted herpes to her. She contends defendant failed to carry his initial burden on summary judgment. We agree and reverse on that basis. Accordingly, we need not address plaintiffs remaining contentions that she submitted evidence demonstrating the existence of a triable issue of material fact and that court should have continued the hearing to allow her to obtain and test blood samples.
FACTS
Plaintiff and defendant were involved in a relationship between 1996 and 2007. A year after they broke up, plaintiff sued defendant under various causes of action, all premised on the allegation that he infected her with the herpes virus.
Defendant moved for summary judgment on the ground he did not have genital herpes and therefore defendant did not cause plaintiff to contract genital herpes, rendering all of plaintiffs causes of action and her claims for damages without merit. In granting the motion, the court found defendants evidence made this showing and that plaintiff presented no contravening evidence, sustaining defendants objections to plaintiffs evidence.
DISCUSSION
We review the grant of summary judgment de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) A defendant moving for summary judgment has the initial burden to conclusively negate[] a necessary element of the plaintiffs case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial . . . . (Ibid.) In ruling on the motion, the court must view all of the evidence and reasonably drawn inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Here, each of plaintiffs causes of action was based on her assertion she contracted the genital herpes virus from defendant. Defendants summary judgment motion argued that, because he did not have genital herpes, he could not have infected her and she could not establish any of her claims against him.
In support, defendant submitted the declaration of Gary A. Richwald, M.D., M.P.H., an expert in sexually transmitted diseases including genital herpes, who reviewed various materials including four blood tests taken from defendant. Richwald opined to a reasonable degree of medical certainty that defendant was not the source of the plaintiffs genital herpes due to HSV-2 because there is no laboratory evidence that [defendant] is infected with herpes simplex virus, type 2 (HSV-2), a cause of genital herpes. (Italics added.) But that implies there are other causes of genital herpes that Richwald did not rule out.
Richwald attested that it was his opinion to a reasonable degree of medical certainty that there is no definitive laboratory evidence that . . . defendant has genital herpes due to HSV-1. Such phrasing however suggests defendant may have both the HSV-1 virus and genital herpes and there is no evidence that HSV-1 cannot cause genital herpes. Similarly, while Richwald concluded to a reasonable degree of medical certainty that [defendant] did not have genital herpes at [a July 1, 1998] visit [to Dr. Mark Saekow . . .[,] the date restriction placed on when defendant purportedly did not have genital herpes leaves open the possibility he may have it now.
Notably absent from Richwalds declaration is any affirmative statement that defendant does not in fact have genital herpes. Nor is that assertion contained in any of the other declarations submitted by defendant in support of summary judgment. In his own declaration, defendant states when and why he had his blood drawn. The remaining declarations of the custodians of records merely authenticate the attached blood tests.
Viewing the evidence in the light most favorable to plaintiff, we conclude defendant failed to carry his initial burden to establish he could not have caused plaintiff to contract genital herpes. Accordingly, it is unnecessary to address plaintiffs remaining contentions on appeal.
DISPOSITION
The judgment is reversed. Plaintiff shall recover her costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
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