Fullerton Med. Group v. Sideman & Bancroft

Filed 2/18/10 Fullerton Med. Group v. Sideman & Bancroft CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Fullerton Medical Group (Fullerton Medical) sued the law firm of Sideman & Bancroft (Sideman) and one of its partners for legal malpractice and related causes of action. Fullerton Medical claims that it retained Sideman to provide legal advice regarding an antitrust claim, that it entrusted Sideman with documents critical to its ability to prove the intended defendants were guilty of anticompetitive conduct, and that Sideman lost those documents.

Sideman moved for summary adjudication, arguing Fullerton Medical could not prove that its antitrust claim was valid. The trial court ruled inadmissible an expert declaration that Fullerton Medical relied upon to prove the defendants caused antitrust injury in the relevant product and geographic markets. Because Fullerton Medical could not prove those elements of its antitrust claim, the court concluded Sideman could not be liable for malpractice or breach of fiduciary duty, and granted summary adjudication in Sidemans favor.

We reverse the judgment for two reasons. We conclude that Sidemans objections to Fullerton Medicals expert declaration went more properly to its weight than its admissibility. Moreover, Sidemans showing in support of its summary adjudication motion was not sufficient to shift the burden of producing evidence to Fullerton Medical to show antitrust injury in the relevant product and geographic markets. After liberally construing the declaration in favor of Fullerton Medical as we must for the party opposing summary adjudication, we conclude that Fullerton Medicals showing was sufficient to establish a triable issue of material fact with regard to the validity of the antitrust claim. Thus, summary judgment was improper and the judgment is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. John Fullerton claimed to have developed a new method for providing health care to patients in subacute care settings, such as skilled nursing facilities that provided a higher level of care to patients while shortening costly hospital stays. Essentially, the method is said to employ specially trained hospitalists who direct patient care in subacute facilities with the support of an interdisciplinary team of caregivers.[1] In 1994, Dr. Fullerton and two other doctors formed Fullerton Medical to consolidate their existing practices and extend the application of Dr. Fullertons method to Medicare and HMO patients. They implemented their method at California Pacific Medical Center, and trained physicians who were employed by California Pacific Medical Group. The physicians trained by Fullerton Medical were required to sign nondisclosure agreements that were intended to prevent them from disclosing Fullerton Medicals method of care. By 1996, Fullerton Medical had contracts with 55 physicians, managed emergency services at California Pacific Medical Center, and had a contract to implement its method and provide exclusive on-site hospitalists for all 32 of Guardian Health Cares Northern California skilled nursing facilities.

Fullerton Medical claimed that California Pacific Medical Group and its successor, the Brown & Toland Medical Group, along with the California Pacific Medical Services Organization, and others, conspired to eliminate Fullerton Medical from the hospitalist market. The conspiracy was said to be responsible for the improper diversion of patients from Fullerton Medical to California Pacific Medical Services Organization and unduly restricting Fullerton Medicals competition with the organizations doctors. Fullerton Medical also said the conspiracy falsely accused it of billing irregularities that destroyed its contractual relationship with Guardian Health Care, coerced three of Fullerton Medicals most highly placed, valued and trained physicians to leave for Brown & Toland, and improperly terminated Fullerton Medicals emergency services contract with California Pacific Medical Center. These acts allegedly eliminated Fullerton Medical from the hospitalist market, and allowed Brown & Toland and California Pacific Medical Services Organization to secure patient admissions and profits for California Pacific Medical Center through an exclusive contract.

Fullerton Medical hired Sideman to explore the possibility of suing the alleged conspirators for antitrust violations, and delivered various documents to Sideman to facilitate its analysis of the case. Later, Fullerton Medical hired Townsend, Townsend & Crew, LLP as its litigation counsel, and requested that Sideman send Townsend all Fullerton Medicals documents. Townsend filed a complaint on Fullerton Medicals behalf, but Sideman never delivered all of Fullerton Medicals documents to Townsend. When Townsend withdrew from the lawsuit due to a conflict of interest, Fullerton Medical hired Blecher & Collins. Fullerton Medical again asked Sideman to deliver documents to Blecher & Collins, but they did not.

Blecher & Collins filed a second amended complaint on behalf of Fullerton Medical in November 2001 that alleged violations of the Cartwright Act (Bus. & Prof. Code,  16720) and unfair competition ( 17200) against Brown & Toland Medical Group, Brown & Toland Physician Services Organization, California Pacific Medical Center, California Pacific Medical Services Organization, and Sutter Health System. Blecher & Collins was succeeded as counsel to Fullerton Medical by King & Kelleher, LLP. When King & Kelleher successfully moved to withdraw, the antitrust action was involuntarily dismissed for lack of prosecution. Fullerton Medical claimed it was unable to retain successor counsel to King & Kelleher because Sideman had lost the corporate files and records that Fullerton Medical claimed were critical to its ability to prove an antitrust violation.

Fullerton Medical sued Sideman for legal malpractice, breach of fiduciary duty, constructive fraud, fraud and deceit, negligent misrepresentation, and conversion. The basis for the causes of action is Sidemans alleged loss of the documents critical to the antitrust case, and conduct that undermined Fullerton Medicals relationship with its successor counsel. After the malpractice complaint was filed, a box of Fullerton Medicals documents was found in storage by a former Sideman partner who had moved to another law firm.[2] Whether all the missing documents were recovered remains a disputed issue.

Sideman moved for summary judgment or summary adjudication on the basis that Fullerton Medicals legal malpractice claim had no merit because it could not prove the underlying antitrust violation. Fullerton Medical opposed the motion with an expert declaration intended to show that the defendants harmed competition in the relevant product and geographic markets, but Sideman objected to the courts consideration of the declaration on the basis that much of it was without foundation. The trial court agreed that the expert declaration was inadmissible, and granted summary adjudication for Sideman on Fullerton Medicals claims for legal malpractice and breach of fiduciary duty. But the court denied summary adjudication of Fullerton Medicals remaining causes of action for fraud and conversion. The parties then stipulated to dismiss those claims with prejudice, and Fullerton Medical timely appealed from the ensuing judgment in Sidemans favor.

DISCUSSION

A. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more of its elements cannot be established or it is subject to an affirmative defense. (Code Civ. Proc., 437c, subd. (o); Aguilar, supra, at p. 850.) If the moving papers make a prima facie showing that justifies a judgment in the defendants favor, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. ( 437c, subd. (p)(2); Aguilar,supra, at p. 849.)

Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party. (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) Thus, we view the evidence in the light most favorable to Fullerton Medical and construe its submissions liberally while we strictly scrutinize Sidemans showing. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) In applying this exacting standard of review, we are also mindful that both California and federal decisions urge caution in granting a defendants motion for summary judgment in an antitrust case. (Fishermans Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320-321.)

Even though a de novo standard applies to our review of the summary judgment motion, we review the trial courts final rulings on evidentiary objections by applying an abuse of discretion standard. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) A court may abuse its discretion when it takes a very narrow and stingy view of an experts declaration offered in opposition to a motion for summary adjudication, instead of applying a liberal construction and resolving doubts in favor of the party opposing the motion. (See Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332-1333.)

B. Dr. Schefflers Declaration in Opposition to Sidemans

Motion for Summary Adjudication

Plaintiffs who sue a lawyer for malpractice in pursuing litigation must show they would have obtained a more favorable resolution of the litigation had the lawyer not been negligent. They are thus required to prove that the litigation matter pursued by the lawyer had merit. (See Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 837; accord, Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) Here, Fullerton Medical asserts it could have prevailed on its antitrust claim brought under the Cartwright Act if Sideman had not lost critical documents. The Cartwright Act prohibits conspiracies in restraint of trade, and generally in order to prove a claim, a plaintiff must demonstrate that the acts of the conspiracy had a substantial adverse effect on competition in a relevant product and geographic market. (Fishermans Wharf Bay Cruise Corp. v. Superior Court, supra, 114 Cal.App.4th at pp. 334-335.)

Fullerton Medicals complaint alleged the relevant product market was the market for provision of hospitalist services to commercial HMO patients, excluding Kaisers commercial HMO members. In answers to interrogatories, Fullerton Medical described the relevant geographic market to be the San Francisco area. But in Fullerton Medicals amended separate statement of additional disputed facts filed in opposition to the motion for summary adjudication, the relevant market was described as higher acuity care for medically complex patients in the City and County of San Francisco.

Sideman challenged Fullertons description of the relevant product and geographic markets for two reasons. First of all, it claimed that admissions in Fullertons complaint alleged the relevant market to be for hospitalist services in Northern California, and in answers to interrogatories described it as the San Francisco area. Thus, Sideman argues Fullerton should be precluded from claiming it to be the City and County of San Francisco in its opposition to summary judgment. But in context, the allegation from Fullertons complaint was not intended to describe the relevant geographic market with precision. Rather, it was designed to describe the effect of the antitrust defendants anticompetitive conduct and variously refers to them causing injury in San Francisco, Northern California and the San Francisco area. The description of the geographic market in Fullertons interrogatory answer was also a qualified one. Fullerton reserved the right to change it based upon later discovered information. If Sideman was concerned that Fullertons answer was evasive or incomplete, it could have moved for an order compelling a more definitive response. (Code Civ. Proc.,  2030.300, subd. (a)(1).) It did not. Nor are either of Fullertons statements so certain that they cannot reasonably be controverted or are fundamentally inconsistent with the geographic market of the City and County of San Francisco described in opposition to summary judgment. (See Pang v. BeverlyHospital, Inc. (2000) 79 Cal.App.4th 986, 989-990; Del E. Webb Corp. v. Structural MaterialsCo. (1981) 123 Cal.App.3d 593, 606.) The fact that Fullerton described the geographic market differently in the complaint and interrogatory answers is not significant.

The other reason Sideman challenged the description of the relevant markets in Fullertons opposition to summary judgment was that they were based upon the declaration of Fullertons antitrust expert, Dr. Richard Scheffler. For a variety of reasons, Sideman argued that Schefflers opinion was without an adequate foundation and should be stricken. The trial court agreed and struck the declaration.

Fullerton Medicals primary substantive argument is that it was error for the court to strike Dr. Schefflers declaration. We agree. Sidemans objections to Dr. Schefflers declaration go more properly to its weight than to its admissibility. (See People ex rel. Dept. of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1086 [lack of specificity in experts testimony regarding sources he relied upon simply affected the testimonys weight and did not provide a basis to exclude it entirely as lacking foundation].) Sideman was not entitled to summary adjudication because the declaration was sufficient to establish a triable issue of material fact.

Expert testimony is admissible when based on matter of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . . (Evid. Code,  801, subd. (b).) So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) An experts declaration need not set forth in excruciating detail the factual basis for the opinions stated therein. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 608, fn. 6.) It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion. (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718; see also Rebel Oil Co., Inc. v. Atlantic Richfield Co. (1995) 51 F.3d 1421, 1435 [expert opinion is admissible and may defeat summary judgment if it appears that the affiant is competent to give an expert opinion and that the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning upon which the opinion is based are not].)

In assessing the sufficiency of Dr. Schefflers declaration, we must take into account that its intended purpose was to defeat Sidemans motion for summary adjudication. (See Jennifer C. v. Los Angeles Unified School Dist., supra, 168 Cal.App.4th at p. 1332.) The requisite of a detailed, reasoned explanation for expert opinions applies to expert declarations in support of summary judgment, not to expert declarations in opposition to summary judgment. (Ibid.) A defendant who moves for summary judgment must show he is entitled to judgment as a matter of law, but a plaintiff opposing such a motion need only raise a triable issue of fact. (Id. at pp. 1332-1333, citing AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065 [ Counter-affidavits and declarations need not prove the oppositions case; they suffice if they disclose the existence of a triable issue ].) When we apply a liberal construction to Dr. Schefflers declaration and resolve doubts in favor of Fullerton Medical as we must for the party opposing summary adjudication, it is clear that Dr. Schefflers opinions were adequately supported by a reasoned explanation and that his conclusions were sufficient to raise a triable issue of fact regarding antitrust injury in the relevant product and geographic markets. (Jennifer C., supra, at p. 1333.)

Dr. Scheffler is the distinguished professor of health economics and public policy at the University of California, Berkeley, and holds the chair in healthcare markets and consumer welfare. He is also director of the Nicholas C. Petris Center on Health Care Markets and Consumer Welfare. Dr. Scheffler states that much of [his] research and writing relates to antitrust-related issues in the health care industry . . . . From the information and data he reviewed, and the analyses he conducted, he concluded: First, the relevant market definition in this case is higher acuity sub-acute care for medically complex patients in the City and County of San Francisco. Second, the relevant market in this case is highly concentrated. Brown & Tolands high market share shows the ability to raise prices beyond competitive levels. Third, based on the hypothetical assumption that [Fullerton Medicals] allegations regarding the underlying defendants are true, these actions, taken together, constituted anticompetitive behavior which seriously injured [Fullerton Medical]. Finally, high concentration of physician organizations, such as that which resulted in this case, increases physician prices and therefore resulted in antitrust harm to consumers. (Italics added.)

1. Relevant Product Market

Sideman approves the general definitions of product and geographic markets Dr. Scheffler describes in his declaration, but chides him because he never attempted to do the things that he stated (and that the law dictates) were necessary to define a product market. A fair reading of the declaration shows otherwise. Dr. Scheffler says a product market is a set of goods and services consumers believe to be interchangeable. He determined that Fullerton Medicals product market was higher acuity subacute care for medically complex patients after considering that certain groups of patients could be transferred out of acute care hospitals earlier when transferred to skilled nursing facilities that employed the Fullerton method.[3] In Dr. Schefflers words, [Fullertons] method therefore offered the patient a higher level of care while at the same time reducing costs, and thereby increasing profit, at the acute care hospital. A fair reading of the declaration leads us to conclude that Dr. Scheffler arrived at the relevant product market after considering the facilities that hospitals would consider appropriate to utilize for transfer of high acuity, complex cases and the medical groups, such as Brown & Toland, who are said to compete for that care.

We do not agree with Sideman that Dr. Scheffler was required to independently demonstrate the basis for his knowledge of the services provided by Fullerton Medical, or identify specific competitors in the Fullerton medical product market. The Fullerton method was claimed to allow hospitals to transfer acute patients they otherwise would retain, and the plain inference is that continued hospitalization or care from competing physician groups are close substitutes for Fullertons product. Sidemans objections to Dr. Schefflers identification of product market go to the weight, not the admissibility of his opinion.

2. Relevant Geographic Market

Sideman challenges the foundation for Dr. Schefflers geographic market conclusion. Again, Sidemans criticisms go more properly to the weight than to the admissibility of Dr. Schefflers opinion. Dr. Scheffler cited a number of factors that he considered. He said, the evidence suggests that the vast majority of patients living in San Francisco obtain their medical care from hospitals and physicians located within the city. These data are supported by general studies, cited [earlier in the declaration], that suggest that patients tend not to travel great distances to obtain health care, particularly in urban areas. Further, in a recent paper I and my co-authors provide an extensive discussion of the geographic market for physician services in California, including the County of San Francisco. We conclude that the appropriate geographic market is local and specifically counties. Urban markets will be smaller because enrollees in urban counties will typically have a larger array of choices of in-network [physician organizations]. [4]

Dr. Scheffler also stated that the United States Department of Justice generally uses county lines to define relevant geographic markets, and there are natural geographic barriers as well as frequently congested roadways that tend to discourage patients from traveling to or from the East Bay or the North Bay to obtain health care services. While Sideman challenges the details and application of some of the data Dr. Scheffler relied upon, Sideman provides no authority to suggest that Dr. Scheffler was required to utilize any particular methodology in order to decide upon the relevant geographic market. Dr. Schefflers declaration provided a reasoned explanation for his determination that the relevant geographic market is the City and County of San Francisco, and greater detail was unnecessary to establish a triable issue of material fact. (See Jennifer C. v. Los Angeles Unified School Dist., supra, 168 Cal.App.4th at pp. 1332-1333; Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 125-126.)

Sideman relies upon Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, to argue that Dr. Schefflers study of health plans and their relationships with physicians organizations could provide no reasonable basis for his opinions in this case. But Lockheed involved a fundamentally different application of an academic study. In Lockheed, an expert relied upon a study to opine that a plaintiff classs exposure to five specific chemicals increased their risk for cancer. But the subjects of the study were exposed to a combination of more than 130 different chemicals, including known carcinogens. The appellate court thus concluded the experts opinion was speculative because there was no way to tell from the study which specific substances actually led to a higher incidence of cancer. (Id. at pp. 564-565.) Our review of the conclusions Dr. Scheffler draws from his academic research yields no such obvious infirmity. Dr. Scheffler and his colleagues studied the market concentration of physician groups in California, and the effect of their market power on the prices paid by health plans for physician services. Part of their analysis focused on determining the configuration of physician markets, and they concluded that local markets could be identified by counties. While the study concluded that health plans paid higher prices when a local physician group exercised market power, there is no obvious reason the analysis would not be the same and apply to consumers of physician services. The study concluded that concentration of physician organizations is associated with higher physician prices. Thus, we cannot conclude that Dr. Schefflers application of the findings in his study is so conjectural or speculative that it provides no reasonable basis for his opinion in this case.

3. Market Share and Market Power

The concept of market power has been referred to as the sine qua nonof antitrust recovery. (Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1681.) It is usually equated with market share, and a competitor, or group of competitors, has market power when they can act to significantly impair competition in the relevant product and geographic market. (Ibid.)

Sideman contends that Dr. Schefflers opinions regarding the Brown & Toland medical groups market share and market power were inadmissible. We disagree. Dr. Scheffler relied upon metrics commonly used by the United States Department of Justice to conclude that the relevant market was highly concentrated, and that Brown & Toland had market power. He stated: Under DOJ guidelines, [Herfindahl-Hirshman Index] values above 1800 are considered high concentration ratios raising concerns about competition, and that two independent data sets showed substantial market concentration in San Francisco, with a Herfindahl-Hirshman Index between 3283 and 3922. Thus, he concluded, Brown & Toland, as the largest [physician organization] in San Francisco, possesses substantial market power. Dr. Scheffler also observed that, Although the relevant product market in this case is narrower than [the market for all physician services], in my opinion the concentration levels in the sub-acute market at issue here would be quite similar or perhaps even higher. Based on analysis he employed to write his recent paper, Dr. Scheffler concluded that even if a group of about 50 physicians were to leave Brown & Toland to form their own [physician organization], it would be expected that physician prices would fall about 1 to 4 percent. In his discussion of antitrust harm, Dr. Scheffler observed Fullerton Medicals allegation that by 1996 it had signed contracts with over 50 physicians . . . .

Dr. Scheffler also relied, in part, upon data recited in an October 2000 order denying summary judgment in the case of St. Lukes Hospital v. California Pacific Medical Center, showing that Brown & Toland had 80% of non-Kaiser managed-care patients or 46% of total managed-care patients if Kaiser is included. Although that data was not developed for this case, Sideman cites no authority to show this is not the kind of factual information on which an expert could reasonably rely. Sideman also challenges Dr. Schefflers academic research on market concentration because it analyzed data from 2001-2002, while the period of time relevant to this case is 1996-1997. But Sideman provides no reason to show that the 2001-2002 information was inaccurate or irrelevant when compared to market concentration in 1996-1997, particularly in light of the data drawn from the October 2000 St. Lukes Hospital order. Dr. Schefflers declaration in opposition to summary adjudication was not required to be as factually detailed as Sideman would like. (See Jennifer C. v. Los Angeles Unified School Dist., supra, 168 Cal.App.4th at pp. 1332-1333; Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 125-126.)

4. Antitrust Injury

Part of a successful antitrust claim also requires that a plaintiff demonstrate that the defendants anticompetitive conduct caused injury to competitive conditions in the economy and not just injury to the plaintiff. (Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 723-724.) This has sometimes been expressed as requiring a plaintiff to prove injury to competition rather than to a single competitor. (Spectrum Sports, Inc. v. McQuillan (1993) 506 U.S. 447, 458; accord, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 186.)

Sideman challenges the foundation for Dr. Schefflers opinion that the actions of the alleged conspirators caused antitrust harm because he never tied his conclusion to the relevant market or period and never explained why he believed there was a high concentration  among physician organizations. For the reasons we have already rejected Sidemans challenges to the foundation for Dr. Schefflers opinions regarding the relevant product market, time period, and market concentration, we also reject this one. Dr. Schefflers conclusion that the elimination of Fullerton Medical from the market would cause antitrust injury in the form of higher prices is not patently unreasonable. Dr. Schefflers conclusion was supported by his empirical research that showed higher concentration ratios by [physician organizations] produce higher prices in the marketplace.

Because Dr. Schefflers declaration raised triable issues of material fact regarding Fullerton Medicals antitrust claims, we reverse the grant of summary adjudication in favor of Sideman on the legal malpractice and breach of fiduciary duty causes of action.[5]

C. Sidemans Failure to Meet Its Initial Burden of Production

As the party seeking summary adjudication, it was Sidemans burden in this case to establish that the relevant product and geographic markets could not be those asserted by Fullerton Medical. In the absence of such a showing, the burden never shifted to Fullerton Medical to produce evidence that the relevant product and geographic markets were as it claimed. (See Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.) Summary judgment law in this state . . . continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854, fn. omitted; see also Code Civ. Proc.  437c, subd. (b)(1).) [T]he burden should not shift without stringent review of the direct, circumstantial and inferential evidence. (Scheiding v. Dinwiddie Construction Co., supra, 69 Cal.App.4th at p. 83.) Our review of the record also discloses that Sideman produced insufficient evidence to shift the burden to Fullerton Medical.[6]

Sidemans motion for summary adjudication challenged Fullerton Medicals ability to establish an antitrust violation in a properly defined product and geographic market. But Sideman offered no expert analysis or evidence to show that the relevant product and geographic markets were different than Fullerton Medical claimed. Instead, Sidemans motion refers to broad declarations by two doctors that stated the number of hospitalists increased substantially over the past decade, and competition in the hospitalist field was generally robust. Those declarations did not define a specific geographic market for hospitalists, or claim the market to be something other than San Francisco. Such conclusory declarations submitted in support of a motion for summary judgment are insufficient to shift the burden of production to the party opposing the motion. (See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308; Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 173.) Statistics from the California Medical Board showing the total number of physicians in San Francisco County, Alameda County and Marin County (as compared to the number of physicians Fullerton Medical alleged were included in the relevant market) were similarly insufficient to demonstrate as a matter of law that Fullerton Medical could not establish its antitrust claim.

Sideman may not simply argue that plaintiff Fullerton Medical lacks sufficient evidence to establish a violation of the Cartwright Act, it must make an affirmative showing that the plaintiff cannot do so. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 103.) Sideman has not shown that Fullerton Medical does not possess, and cannot reasonably obtain, needed evidence to establish a prima facie case of injury to competition in a relevant product and geographic market. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) Thus, the burden never shifted to Fullerton Medical to produce evidence demonstrating a triable issue of material fact regarding the relevant markets, and Sideman was not entitled to summary adjudication of Fullerton Medicals antitrust claims for this reason as well.

Sidemans initial moving papers in this case included more than 1,750 pages, and there were over 4,000 pages before the trial court for its consideration when it ruled on the motion. Division Two of this court recently recognized the potential for abuse of the summary judgment procedure by deep pocket defendants who file oversized motions and sometimes persuade trial courts to make determinations properly reserved for the finder of fact, thus requiring plaintiffs to essentially prove their case at the summary judgment stage. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) We share our colleagues concern that there may be nothing summary about such voluminous motions that frequently impose an unduly oppressive burden on opposing parties and the trial courts.

Indeed, we question whether Sidemans motion should have been brought on Sidemans paltry evidentiary showing. Volume does not equate with significance. Summary adjudication is appropriate when there is no genuine factual dispute. It is not an appropriate means to test the sufficiency of a partys evidence just because the moving party disagrees with it. That seems to be what happened in this case. While Sideman may not agree with Dr. Schefflers opinion or his methodology, such genuine differences are exactly what trials are intended to resolve.

D. The Fraud and Conversion Causes of Action

The trial court denied Sideman summary adjudication on Fullerton Medicals causes of action for constructive fraud, fraud and deceit, negligent misrepresentation, and conversion when it granted summary adjudication on the legal malpractice and breach of fiduciary duty causes of actions. But during a later case management conference, the trial court said it would not allow Fullerton Medical to present evidence of the underlying antitrust case in order to prove its fraud and conversion claims. Although the court declined to grant summary judgment on Fullerton Medicals entire case, it advised the parties, its real easy to stipulate to a dismissal of the other causes of action in light of my ruling on the summary adjudication motion.

The parties thereafter stipulated to dismissal of the fraud and conversion claims with prejudice. The stipulation states: [Fullerton Medical] believes the effect of the Courts summary adjudication is such that it would preclude reference at trial to [Fullerton Medical]s underlying case making it impossible for [Fullerton Medical] to succeed in a court trial on its [fraud and conversion causes of action]. [Fullerton Medical] believes a trial will be futile, and wasteful of the Courts, [Fullerton Medical]s, and defendants resources. [Fullerton Medical] wishes to avoid such futility and waste by seeking immediate appeal and is willing . . . to stipulate to entry of judgment, with prejudice, on the [fraud and conversion causes of action] . . . so that the Court enters one judgment addressing all of [Fullerton Medical]s claims.[7]

Fullerton Medical now argues that its fraud and conversion causes of action should be reinstated because it consented to dismiss them with prejudice merely to facilitate an appeal following adverse determination of a critical issue. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 393-394, 400-402 [plaintiffs consented to judgment to facilitate appeal of ruling on statute of limitations issue that was dispositive of their wrongful death claim, and it appeared  the consent was given only pro forma to facilitate an appeal ]; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1428 [ it would be  wasteful of trial court time to require the plaintiff to undergo a probably unsuccessful court trial merely to obtain an appealable judgment ].)

A reading of Fullerton Medicals complaint shows that the fraud and conversion causes of action turn upon the injury to Fullertons antitrust claim as a result of Sidemans loss of the allegedly critical documents.[8] It is unclear to us how Fullerton Medical could prove damages on the fraud and conversion causes of action without presenting evidence that the antitrust claim had merit. Sideman contends Fullerton Medical sought damages on some of its fraud and conversion claims that were different than the damages sought on the malpractice and breach of fiduciary duty claims.[9]But the same prayer for relief applies to all causes of action alleged in the complaint, and seeks compensatory and general damages arising from Sidemans alleged misconduct. Fullerton Medicals fraud and conversion claims (and the associated damages) could not be determined without reference to the evidence of the antitrust claim, and the stipulation for dismissal to facilitate appeal of the trial courts summary adjudication ruling should not preclude Fullerton Medical from further litigating those claims in the trial court.

DISPOSITION

The judgment is reversed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.

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[1] Hospitalists are physicians who care for hospitalized patients in place of their primary care physicians.

[2] Fullerton Medicals second amended malpractice complaint also named as defendants the former Sideman partner who found the documents and his new law firm. Those defendants obtained summary judgment on statute of limitation grounds, and Fullerton Medicals appeal from the judgment in their favor was dismissed as untimely. (Fullerton Medical Group v. Joseph M. Burton (Mar. 19, 2007, A116648) [nonpub. opn.].)

[3] Dr. Scheffler defined this patient group by referring to ICD-9 codes, which group related disease entities and procedures for the purpose of reporting statistical information, that were provided to him by Fullerton Medical.

[4] Dr. Schefflers recent research paper was attached as Exhibit 2 to his declaration. The paper described the market structure of health plans and physician organizations in California, calculated Herfindahl-Hirschman Index concentration indices for those entities in 42 California counties, estimated a multivariable regression model to examine the relationship between concentration measures and the prices paid by health plans to physician organizations, and concluded that physician concentration was associated with higher physician prices. With regard to geographic markets within California, the study defined local markets by county, but also repeated its analyses with metropolitan statistical areas as the units of analysis. The results were virtually identical. The study concluded [t]he most plausible explanation for the positive [physician organization] price effect is simply that, on average, [physician organizations] in Californias more concentrated physician markets are able to charge higher prices to [health plans] because of their market power, and [a]ttenuation in the ability to negotiate price and selectively contract ultimately feeds back to consumers in the form of higher prices.

[5]We therefore do not address Fullerton Medicals additional arguments that the trial court exhibited unfair bias, improperly declined to shift the burden of proof to Sideman, and erroneously denied Fullerton Medicals request for a continuance to permit further discovery before ruling on Sidemans summary adjudication motion.

[6] The trial courts memorandum of decision does not discuss this issue, and it was not briefed by the parties. We will nevertheless address it, as our review of the courts ruling is de novo, and the statutory framework requires such a determination.

[7] At a hearing where the parties stipulation was discussed, counsel for Fullerton Medical stated: The only thing we were trying to do with the stipulation is preserve our right to appeal . . . [and] preserve the right to bring [the fraud and conversion causes of action] back into the case should we prevail on appeal. Defense counsel responded that a dismissal with prejudice is a dismissal with prejudice, and precludes any future attempt to litigate those matters. Later, Fullerton Medicals counsel explained: We are trying to avoid the waste of having the court call in a jury and having us stand up in front of a jury and say we dont have any evidence of damages to present you and then having a nonsuit.

[8] The cause of action for constructive fraud alleged Sideman acted to deceive Fullerton Medical (and the court in the underlying case) and prevent it from learning that Sideman had lost or otherwise failed to preserve critical evidence necessary for [Fullerton Medical] to assert its claims against the [antitrust defendants], . . . and with the intent to shield themselves from responsibility at the expense of [Fullerton Medical]s loss of the otherwise meritorious underlying claim against the [antitrust defendants]. . . . [] As a proximate result . . . [Fullerton Medical]s [antitrust] case . . . was dismissed to [Fullerton Medical]s damage. (Italics added.) The cause of action for fraud and deceit alleged Sidemans conduct constituted a fraud against [Fullerton Medical], as well as a fraud upon the proceedings in the underlying case. [Sideman] made material false representations, concealment, and non-disclosure, with intent to defraud [Fullerton Medical], and prevent [Fullerton Medical] and its counsel from discovering that [Sideman] had lost or otherwise failed to preserve the critical evidence needed to prosecute its claims in the [underlying case]. Sideman also allegedly caused irreparable harm to Fullerton Medicals relationship with successor counsel, with the result that Fullerton Medical was unable to secure legal representation in the antitrust case. The cause of action for negligent misrepresentation incorporated the same allegations. The cause of action for conversion demanded that Sideman return Fullerton Medicals property and compensate Fullerton Medical for the losses it suffered as a result of Sidemans conduct, including the value of the documents whose usefulness and value have been destroyed [since they] can no longer be used as intended in the underlying case . . . .

[9] The causes of action for negligent misrepresentation and conversion included allegations that Fullerton Medical suffered economic losses, and other general and specific damages, including but not limited to damages to business reputation, lost profits, lost credit, lost interest, lost revenue, and lost business opportunities . . . .