English v. McKenna

Filed 11/29/05 English v. McKenna CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOYCE ENGLISH, Plaintiff and Appellant, v. ROBERT McKENNA et al., Defendants and Respondents.

B176725 (Los Angeles County Super. Ct. No. LC064233)

APPEAL from a judgment of the Superior Court of Los Angeles, Richard A. Adler, Judge. Affirmed.

Law Office of Kim D. Scovis, Kim D. Scovis and Jenny Scovis for Plaintiff and Appellant.

Schmid & Voiles and Suzanne De Rosa for Defendant and Respondent Robert McKenna.

Carroll, Kelly, Trotter, Franzen & McKenna, Michele A. Wilson; Greines, Martin, Stein & Richland, Robin Meadow and Jens B. Koepke for Defendant and Respondent Cedars-Sinai Medical Center.

Rushfeldt, Shelley & Drake, Kathryn S. M. Mosely, Robert C. Powers, and Jamie C. Ball for Defendant and Respondent Sherman Oaks Hospital and Health Center.

McCurdy & Leibl, John D. McCurdy and Christy Gargalis for Defendant and Respondent Stanley Cowen.

_______________________________

This is a wrongful death action in which the trial court granted the defendants’ separate motions for summary judgment. We affirm.

BACKGROUND

A.

In 2000, Lori English (then 43 years old with a history of gastroesophageal reflux disease, congestive heart disease, and related medical problems) had gastric surgery at Providence St. Joseph Medical Center. Her symptoms returned about a year later, and in November 2001 the same surgical procedure was performed by Robert McKenna, M.D., at Cedars-Sinai Medical Center. Three days after she was discharged from Cedars-Sinai, Lori was admitted to Sherman Oaks Hospital and Health Center where further surgery was performed by Stanley Cowen, M.D. Lori died in December 2001.

B.

In March 2003, Joyce English (Lori’s mother) sued Dr. McKenna, Cedars-Sinai, Sherman Oaks Hospital, and Dr. Cowen for wrongful death damages, alleging that all of the healthcare providers were negligent. The defendants answered, conducted discovery, then separately moved for summary judgment:

1. Dr. McKenna. His motion was filed on October 30, 2003 (with the hearing set for February 18, 2004), and was supported by admissible evidence (including an expert’s declaration) showing that his treatment of Lori was not negligent. On February 4, 2004, English filed her “opposition” to Dr. McKenna's motion but did not offer any evidence or argument. Instead, she asked for a two-month continuance so she could “receive responses to discovery which [had] already been propounded” and “set depositions in the near future.” Her lawyer said the delay in propounding discovery was “due to some personal emergencies, including the fact that [counsel’s] mother and partner was involved in a very serious car accident on September 2, 2003, which caused her to break over sixteen bones, required a long hospitalization and two surgeries.” In addition, she said, her “father [had] been hospitalized twice in the past six months with life-threatening illnesses.” On February 20, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Dr. McKenna’s evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 16.

2. Dr. Cowen. His motion was filed on November 12, 2003, and was supported by admissible evidence (including an expert’s declaration) showing that his treatment of Lori was not negligent. On January 22, 2004, English filed the same “opposition” she filed with regard to Dr. McKenna’s motion. On February 5, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Dr. Cowen’s evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 9.

3. Sherman Oaks Hospital. Its motion was filed on November 12, 2003 (with the hearing set for February 5, 2004), and was supported by admissible evidence (including experts’ declarations) establishing that its treatment of Lori was not negligent. On January 22, 2004, English filed the same “opposition” to Sherman Oaks’ motion that she filed to Dr. McKenna’s and Dr. Cowen’s motion. On February 5, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Sherman Oaks’ evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 29.

4. Cedars-Sinai. Its motion was filed on January 30, 2004 (with the hearing set for April 12, and was supported by admissible evidence (including experts’ declarations) establishing that its treatment of Lori was not negligent. On March 29, English filed her opposition to Cedars-Sinai’s motion, this time “disputing” the evidence in a separate statement but once again failing to present admissible evidence supporting her claim of negligence. Instead, English submitted a “to whom it may concern” letter from David C. Brooks, M.D., a Massachusetts physician. The letter is not signed under penalty of perjury, and the doctor states only that he “reviewed a variety of records” (he does not identify them); the point of the letter is that the care provided by “the second hospital” was negligent. English also submitted excerpts from her own deposition testimony and unauthenticated copies of Lori’s medical records. In a supporting memorandum of points and authorities, English claimed that her own testimony showed that Lori was in pain, and that fact showed that Cedars-Sinai was negligent. On April 14, the trial court sustained Cedars-Sinai’s objections to English’s evidence and granted Cedars-Sinai’s motion for summary judgment.

C.

Before the ruling on Cedars-Sinai’s motion, English filed three notices of appeal from the three nonappealable orders granting the other defendants’ motions for summary judgment. In May, those appeals (all filed as case number B174246) were dismissed for nonpayment of fees and for a failure to designate a record.

On April 30, the trial court signed and filed a single final judgment against English and in favor of Dr. McKenna, Dr. Cowen, Sherman Oaks Hospital, and Cedars-Sinai. English filed a timely notice of appeal from that judgment.

DISCUSSION

English’s appeal fails for a number of reasons.

First, we disregard her statement of facts because it is unsupported by a single reference to the record, in blatant violation of rules 14(a)(1)(C) and 14(a)(2)(C), California Rules of Court, and because she refers to “facts” that cannot be found in the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)

Second, her claim that her requests for continuances of the first three motions for summary judgment should have been granted is nothing more than an abstract discussion of general legal principles without any attempt to apply those principles to the facts of this case. The most that English has to say is that she told the court she had to conduct more discovery, and she simply ignores the fact that she failed to explain how that discovery would enable her to oppose the summary judgment motions or why she could not present her own expert’s declaration. In short, she has not shown that the trial court abused its discretion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254-257; A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Third, with regard to Cedars-Sinai, English’s brief does not challenge anything about that summary judgment, which means she has waived whatever claim she thought she had when she filed her notice of appeal. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

For these reasons, the judgment must be affirmed.[1]

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

SPENCER, P.J.

MALLANO, J.

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[1] While this appeal plainly lacks merit, we do not believe it meets the standard of frivolous and therefore deny Cedars' motion for sanctions.