Hoffman v. Superior Court CA2/5

Filed 9/16/14 Hoffman v. Superior Court CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

ALLEN HOFFMAN, No. B256300

Petitioner, (Los Angeles County Super. Ct. No. LC099715) v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

MARCEL GORANSON,

Real Party in Interest.

ORIGINAL PROCEEDINGS; preemptory writ of mandate. Elia Weinbach, Judge. Preemptory writ of mandate issued. Schmid & Voiles and Denise H. Greer for Petitioner. No appearance by Respondent. Marvin S. Shebby for Real Party in Interest. ______________________

A doctor moved for summary judgment in a medical malpractice action alleging negligent performance of a 2011 hernia surgery. The doctor relied on a declaration prepared by a physician who was board-certified in general surgery three times and had extensive professional experience. Respondent court sustained an objection to the expert’s declaration on the basis that it failed to establish the expert was familiar with the standard of care for hernia surgery in 2014. After the doctor-defendant filed a petition for writ of mandate, this court issued an alternative writ directing respondent to confer with the parties and enter new orders overruling the objection and granting the doctor’s motion for summary judgment, or to show cause why the relief sought should not be granted. At the hearing on the alternative writ, respondent court admitted it had “erred in excluding [the] declaration” under decisions of the Court of Appeal and California Supreme Court, and summary judgment should have been granted. Respondent court elected not to comply with the alternative writ because it concluded there is no harm in allowing the plaintiff “to at least make the argument in the court of appeal . . . .” We issue a peremptory writ of mandate, holding that respondent court breached its obligation to follow binding appellate authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)