Judge Audra Mori, Case 19STCV42929 2022-10-17 Tentative Ruling

Plaintiffs Dusty Anderson (“Dusty”) and Michael Anderson (“Michael”) (collectively, “Plaintiffs”) filed this action against defendants Robert W. Mower, D.D.S. and Ryan Colletta, D.D.S. for professional negligence and loss of consortium relating to dental care provided to Dusty.

Defendant Robert W. Mower, D.D.S. (“Defendant”) now moves for summary judgment. Plaintiffs oppose the motion, and Defendant filed a reply.

Defendant argues they he is entitled to summary judgment because the evidence establishes Defendant’s treatment of Dusty met the applicable standard of care for a dentist and maxillofacial surgeon. Defendant contends that he did not cause or contribute to Plaintiffs’ claimed injuries. Defendant supports the motion with the expert declaration of Mary Delsol Dobon, D.S.S. (“Dr. Dobon”). Dr. Dobon opines the care and treatment rendered to Dusty by Defendant was within the standard of care and that Defendant did not cause or contribute to Dusty’s injuries.

Plaintiffs seek a continuance of Defendant’s motion pursuant to CCP § 437c(h). Plaintiffs assert that Defendant failed to produce CT images of Dusty’s jaw that Defendant obtained during the course of treatment, so additional time is required to allow Plaintiffs’ experts to evaluate the records. Further, Plaintiffs assert additional time is required to take Defendant’s deposition to inquire about inconsistencies in his records and to depose additional treating physicians. Plaintiff provides that Plaintiff’s counsel has serious personal health issues, including Parkinson’s disease, diabetes, and complicated ENT problems, which have worsened over the last five months and have been compounded by a long case of COVID-19. For example, after testing positive COVID-19 over the summer, the surgeries that counsel had scheduled to address his ability to speak were postponed and will not begin until next month. Plaintiff’s counsel attests that these conditions have made it impossible to conduct necessary discovery prior to this time.

CCP § 437c(h) states: “[i]f 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, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].)

Consequently, if the opposing party shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented, the court shall deny the motion” or continue it for a reasonable period, or “make any other order as may be just.” (Code Civ. Proc., § 437c(h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395, [“[T]he policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. [Citation.]”].) An application by way of declaration to continue the motion may accompany the opposition papers or be made by ex parte motion any time on or before the date the opposition to the motion is due. (Code Civ. Proc., § 437c(h); see Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 CA4th 632, 644 (continuance request timely where made after filing of summary judgment motion since § 437c(h) “expressly contemplates” filing continuance request any time before “opposition response to the motion is due”).)

Here, Plaintiffs contend they require additional time to conduct discovery to adequately oppose Defendant’s motion for summary judgment. In particular, Plaintiffs assert they need to obtain CT images relied on by Dr. Dobon that were not provided by Defendant for Plaintiffs’ expert to complete his analysis and formulate an opinion. Plaintiffs contend the CT images relate to issues at the heart of this case. Further, Plaintiffs assert they wish to depose Defendant to inquire into the basis of statements made by him in the records about Dusty’s condition, and they wish to depose other physicians involved in treating Dusty’s osteomyelitis infection. Plaintiffs provide they were not able to complete this discovery because of Plaintiff’s counsel’s health issues, which have worsened and were compounded by a long case of COVID-19 since May 2022.

Defendant, in reply, argues that Plaintiffs are seeking a second continuance of Defendant’s motion for summary judgment but fail to provide any reasons warranting a continuance. Defendant argues that Plaintiffs’ counsel is relying on the same medical difficulties Plaintiffs previously relied on in obtaining a prior continuance of the motion. Defendant filed this motion on April 4, 2022, initially setting it for hearing on June 20, 2022. On the May 24, 2022, the Court heard and granted Plaintiffs’ ex parte application to continue the hearing on Defendant’s motion and continued the hearing date to October 17, 2022. Defendant contends that Plaintiffs are abusing the continuance provision of CCP § 437c(h) to prevent the motion from being heard on the merits. Defendant argues that Plaintiffs fail to identify any facts essential to opposition Defendant’s motion and that Plaintiffs fail to explain why they could not have obtained the discovery previously.

However, Plaintiffs submit a declaration from their expert, Michael A. Cobin, D.M.D., providing that “Critical to the formulation of any opinion on standard of care or causation is the complete absence of the actual radiographic images in the records provided in support of the Motion for Summary Judgment. Only Dr. Mower’s statements about CT imaging, done on October 12, and October 23, 2018, are provided. These statements are set forth in Paragraphs 14, 20, 25 and 50 of Dr. Dobon's declaration. However, the imaging studies, themselves, have not been provided for review. As stated above, I am fully qualified to interpret dental CT scans, and cannot reach any final opinions in this case without the opportunity of doing so.” (Opp. Cobin Decl. ¶ 8.) Moreover, Plaintiffs aver that they intend to depose Defendant regarding Defendant’s statements in records relating to Dusty’s condition and the results of the CT scans. Plaintiffs’ counsel attests that for most of the year he has been dealing with several medical issues, including Parkinson’s disease, diabetes, and testing positive for Covid-19. (Opp. Crotos Decl. ¶¶ 2-4.) Plaintiffs’ counsel states that given his health, he has not been able to complete this discovery. (Id. at ¶¶ 5-7.)

The Court understands Defendant’s frustration with this situation. However, it is not disputed that Plaintiff’s counsel’s serious medical conditions were exacerbated by a long case of COVID-19 or that certain discovery has not been done. Plaintiffs sufficiently establish that essential evidence may exist, but Plaintiffs were not able to previously obtain the evidence in time to oppose the motion. Evidence concerning Defendant’s care and treatment of, statements in records concerning such, and potential liability for Dusty’s injuries, are essential to this action. “[I]n any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]’ ” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877; see also Hanson v. Grode (1999) 76 Cal.App.4th 601, 606, as modified (Nov. 29, 1999).) Furthermore, Plaintiffs’ expert expressly states the additional evidence is critical to the expert forming an opinion concerning this matter. . “ ‘ “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]....” [Citations.]’ [Citations.]” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)

Trial is currently set for April 28, 2023, so a continuance will not affect the trial date. However, given that this matter has previously been continued once, no further continuances of the motion should be expected. Plaintiffs must plan all discovery and motion practice accordingly. Plaintiffs should promptly take steps necessary to prosecute their case with diligence, and Defendant should have his motion heard without additional delay.

Defendant’s motion for summary judgment is continued to ________________. Plaintiff must file a supplemental opposition no later than 16 court days before the hearing. Defendant must file any supplemental reply five court days before the continued hearing.

Hon. Audra Mori

Judge of the Superior Court