Midyette v. Kuetel CA4/3

Filed 12/1/14 Midyette v. Kuetel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MICHAEL A. MIDYETTE,

Plaintiff and Appellant, G048901

v. (Super. Ct. No. 30-2012-00536910)

KEVIN D. KUETTEL et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Mazur & Brooks and Michael D. Mazur for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Creason & Aarvig, James A. Creason and Larry A. Dunlap, for Defendants and Respondents.

INTRODUCTION This is not a second-bite-of-the-apple case. This appeal presents us with an apple chewed right down to its core. Appellant Michael Midyette had not one, not two, but three chances to submit admissible evidence to oppose a summary judgment motion in his medical malpractice action. Each time he failed to do so. Finally at the end of its patience, the trial court granted respondents’ summary judgment motions. Midyette has identified a very narrow issue on appeal. The only error he attributes to the trial court is failing to consider three late-filed declarations. Two of them were from him and from his attorney, both filed just before midnight on the day before the final hearing, after the court had issued a tentative ruling once again finding Midyette’s evidentiary showing inadequate and after the court had explained exactly what his evidence should have been. The third declaration, filed on the morning of the hearing, was yet another attempt by his expert to get it right. The standard of review makes the call not so much easy as unavoidable. The trial court was well within its discretion to refuse to consider declarations drafted after the court had explained how they should have looked. We therefore affirm the judgment. FACTS Midyette filed a medical malpractice action against Doctors Winkle and Kuettel and their medical group after sustaining an injury during a medical procedure. Both doctors moved for summary judgment, submitting evidence the court found sufficient to support a prima facie case that they had met the necessary standard of care. In opposition, Midyette submitted the declaration of Dr. Cantor, who opined that the defendant doctors had not met the standard of care. Dr. Cantor stated that he had formed his opinion after “review[ing] the medical records pertaining to the treatment of . . . Midyette, including laboratory and radiographic studies.”