Biglay v. Berkowitz CA2/2

Filed 4/8/14 Biglay v. Berkowitz CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

TRACY BIGLAY et al., B246513

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. EC056345) v.

MAURICE BERKOWITZ et al.,

Defendants and Respondents.

APPEALS from judgments of the Superior Court of Los Angeles County. Donna Fields, Judge. Affirmed.

Kenneth M. Sigelman & Associates, Kenneth M. Sigelman, Penelope A. Phillips for Plaintiffs and Appellants.

LaFollette, Johnson, DeHaas, Fesler & Ames, Don Fesler, David J. Ozeran for Defendant and Respondent Maurice Berkowitz.

Reback, McAndrews, Kjar, Warford, Stockalper & Moore, Patrick Stockalper, Harlan Petoyan for Defendant and Respondent Robert Pereyra. ___________________________________________________

Appellants did not file a substantive opposition to respondents’ motions for summary judgment, and instead sought a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h).1 The declaration accompanying the request for continuance failed to explain what facts could be obtained through additional discovery that would justify an opposition. The declaration was therefore deficient, and the trial court did not err by denying a continuance and granting summary judgment. BACKGROUND The complaint in this matter was filed in July 2011. The plaintiffs, Michael Biglay and Tracy Biglay, alleged that the defendants, Maurice Berkowitz, M.D., East Valley Hematology & Oncology Medical Group, Inc., Robert Pereyra, M.D., and Foothill Surgical Specialists, negligently failed to possess or exercise the requisite degree of knowledge or skill in their treatment of Michael Biglay. Michael Biglay stated a claim for medical malpractice and Tracy Biglay, his wife, stated a claim for loss of consortium. Following the filing of the complaint, Michael Biglay died. A first amended complaint was filed by Tracy Biglay in May 2012, on behalf of herself and as guardian ad litem for the couple’s two minor children. The first amended complaint contained three causes of action: (1) wrongful death; (2) loss of consortium; and (3) recovery of medical expenses. In September 2012, Berkowitz and Pereyra separately moved for summary judgment. They argued that the care and treatment they rendered to Michael Biglay met the standard of care, and that their acts and omissions did not cause or contribute to Michael Biglay’s death. Briefly, Pereyra contended that there was no viable surgical treatment he could have performed to alleviate Michael Biglay’s cancer symptoms, and Berkowitz argued that Michael Biglay’s decision to decline intravenous chemotherapy treatment resulted in a negative outcome, a consequence that Berkowitz explicitly advised was likely to occur. Both defendants’ motions were supported by declarations