Gowan v. Walkes CA1/1

Filed 2/3/16 Gowan v. Walkes CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MICHAEL D. GOWAN, Plaintiff and Appellant, A143032 v. JON-CECIL WALKES et al., (Alameda County Super. Ct. No. RG12620735) Defendants and Respondents.

In this medical malpractice action, defendant doctors and hospital won summary judgment against plaintiff Michael D. Gowan. Gowan pursued a variety of motions seeking reconsideration and relief from judgment, including a motion under Code of Civil Procedure section 473, subdivision (b),1 which permits relief in the face of “mistake, inadvertence, surprise, or excusable neglect.” The trial court denied section 473 relief. On appeal, Gowan re-argues the merits of the summary judgment motion and various other matters. However, the only issue properly before us is whether the trial court abused its discretion in denying section 473 relief. It did not, and we affirm. BACKGROUND Gowan, representing himself without the assistance of an attorney, sued defendants for medical malpractice and injuring him during heart surgery.

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

1

Defendants moved for summary judgment on February 13, 2013, submitting expert testimony opining defendants’ professional services were within the applicable standard of care and Gowan’s injury was caused by a trapped air pocket within the heart—a known, if rare, complication of his valve repair surgery that could occur without negligence. In his September 27, 2013 opposition, Gowan submitted no expert testimony of his own. Instead, in October, just days before the already-continued summary judgment hearing, Gowan sought leave to introduce a declaration from heart surgeon Dr. Robert Shuman. Shuman opined, based on postoperative echo tests, Gowan was “[m]ore likely than not” harmed by a “suture injury” during the valve repair, not intracoronary air, and that a suture injury could have been repaired if Gowan’s doctors had suspected it. Not suspecting this problem, Shuman claimed, fell below the standard of care. The trial court construed Gowan’s late filing as a request for continuance, which it granted, putting off the summary judgment hearing until January 7, 2014. Additionally, Gowan could file a supplemental opposing brief on or before November 26, 2013, and defendants would have until December 20, 2013 to file a response. Before his supplemental opposition was due, Gowan learned, at the November 20, 2013 deposition of a Dr. Lin, that records of an intraoperative echo had just come into defendants’ possession, pursuant to a renewed a subpoena for records previously served on the hospital where the surgery took place. Gowan obtained a copy of the new echo on November 25, the day before his supplemental opposition was due. Gowan did not, however, ask for an extension of time to file his supplemental opposition or a further continuance of the summary judgment hearing. The summary judgment hearing went forward on January 7, 2014, and Gowan still made no mention of the intraoperative echo. After taking the motion under submission, the trial court granted it on January 27. The court concluded Shuman’s declaration did not raise a triable issue of material fact because Shuman relied on assumed facts not