California Court of Appeal Jul 29, 2013 No. D061342Unpublished
Filed 7/29/13 Volk v. Bianchi CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CAROLYN VOLK, D061342
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00062522- CU-PN-NC) ANTHONY BIANCHI,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Iverson, Yoakum, Papiano & Hatch, Neil Papiano and Justin A. Palmer for
Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Robert B. Fessinger and Kyle A. Cruse for
Defendant and Respondent.
Carolyn Volk appeals from a summary judgment in her medical malpractice
action against Dr. Anthony Bianchi. Volk contends the judgment should be reversed
because (1) Dr. Bianchi's breach of the standard of care and that he caused her injuries
were matters of common knowledge and thus required no expert testimony, (2) the
declaration of Dr. Bianchi's expert was deficient, and (3) the trial court abused its
discretion in denying her request for a continuance. We reject Volk's contentions and
objections not made at the hearing shall be deemed waived."].) Although Volk
submitted evidentiary objections to the trial court, those objections were largely
boilerplate objections and were limited to objections concerning relevancy, hearsay,
lack of personal knowledge, and failure to practice in the same locality. Accordingly,
on appeal, we consider only the locality objection.
Volk contends Dr. Muth's declaration is deficient because he "currently
practices in Long Beach, California" and "d[id] not demonstrate his knowledge of the
practice of gynecology within the Fallbrook locality." We find this argument
unavailing.
"[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the medical
profession under similar circumstances. [Citation.] The test for determining
familiarity with the standard of care is knowledge of similar conditions. [Citation.]
Geographical location may be a factor considered in making that determination, but,
by itself, does not provide a practical basis for measuring similar circumstances.
[Citations.]" (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 470.)
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The curriculum vitae attached to Dr. Muth's declaration reveals that he had
practiced obstetrics and gynecology in Southern California for more than 30 years,
was board certified in that field in 1979, and served as an obstetrics and gynecology
professor at two major universities in Southern California. Further, Dr. Muth stated
that through his training, experience and practice, he was familiar with the type of care
rendered by Dr. Bianchi to Volk. Dr. Muth's declaration established that he was
generally familiar with the standard of care for obstetrics and gynecology and with
treating cases similar to Volk's in Southern California. Volk fails to explain how the
conditions or circumstances of her treatment in Fallbrook differ from those in Long
Beach. Accordingly, we conclude the trial court acted well within its discretion in
overruling Volk's locality objection.
IV. Denial of Continuance
Volk argues the trial court erred by denying her request to continue the
summary judgment hearing to allow her to submit an expert declaration.
The summary judgment statute provides the following: "If it appears from the
affidavits submitted in opposition to a motion for summary judgment . . . 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. The
application to continue the motion to obtain necessary discovery may also be made by
ex parte motion at any time on or before the date the opposition response to the motion
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is due." (Code Civ. Proc., § 437c, subd. (h).) The party seeking a continuance must
submit an affidavit or declaration showing that " '(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 these facts.' " (Cooksey v.
Alexakis (2004) 123 Cal.App.4th 246, 254.)
As a preliminary matter, we note that Volk repeatedly references her counsel's
declaration in support of her ex parte request for a continuance in the trial court. She
asserts her counsel's declaration provided the bases for why a continuance was
necessary. However, Volk failed to include the declaration or any other ex parte
papers in the record on appeal. Thus, she has not provided us with a basis for review
of her counsel's declaration. Based on the record before us, we review the court's
denial of Volk's continuance request for an abuse of discretion. (Johnson v. Alameda
County Medical Center (2012) 205 Cal.App.4th 521, 532.)
Dr. Bianchi filed his summary judgment motion in April 2011. After failing to
file an opposition, Volk requested a continuance from the court, stating her experts
needed sufficient time to review voluminous medical records and prepare declarations
refuting Dr. Muth's findings. Accordingly, the trial court continued the hearing to
October 2011. Volk eventually opposed the summary judgment motion without a
supporting expert declaration. The opposition did not request a further continuance.
Rather, three days before the summary judgment hearing, Volk made an ex parte
request for another continuance. The court denied Volk's request, noting the matter
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was previously continued to allow Volk to file an opposition and no request for a
further continuance was in that opposition. On this record, we cannot conclude the
trial court abused its discretion in denying Volk's request for a continuance.
DISPOSITION
The judgment is affirmed. Respondent is entitled to recover costs on appeal.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed summary judgment for the defendant physician, holding that the plaintiff failed to provide necessary expert testimony to establish a breach of the standard of care or causation in a medical malpractice action. The court further held that the defendant's expert declaration was sufficient and that the trial court did not abuse its discretion in denying a further continuance.
Issues
Whether the plaintiff's medical malpractice claims required expert testimony to survive summary judgment.
Whether the defendant's expert declaration was sufficient to support summary judgment.
Whether the trial court abused its discretion in denying the plaintiff's request for a second continuance to obtain expert testimony.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“These issues are beyond the common knowledge of a layperson and require expert testimony.”
“On this record, we cannot conclude the trial court abused its discretion in denying Volk's request for a continuance.”