Filed 11/20/15 Witt v. Physical Therapy Specialists 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


DIANE WITT,                                                          B249101

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. SC111354)
         v.

PHYSICAL THERAPY SPECIALISTS
OF BEVERLY HILLS,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Norman
P. Tarle, Judge. Affirmed.
         Diane Witt, in pro. per., for Plaintiff and Appellant.
         Morris Polich & Purdy LLP, Richard H. Nakamura, Jr., Marc S. Katz for
Defendant and Respondent.
                                     INTRODUCTION


       In this action for medical negligence, plaintiff and appellant Diane Witt appeals
from a judgment following the granting of a motion for summary judgment in favor of
defendant and respondent Physical Therapy Specialists of Beverly Hills (“defendant”).
Plaintiff contends the court denied her the right to argue in opposition to the motion at the
hearing, in violation of due process. We affirm the judgment.


                            PROCEDURAL BACKGROUND


       Plaintiff filed a complaint against defendant and Melia Kakita, DPT on February
4, 2011 for damages for medical negligence. She filed a First Amended Complaint on
July 16, 2012.1 In the amended complaint, she alleged that the treatment she received in
2007 from defendant and Kakita injured her left leg.
       In an answer filed July 25, 2012, defendant denied every allegation of the first
amended complaint and asserted affirmative defenses.
       On November 30, 2012, defendant filed a motion for summary judgment on the
ground, among others, that there is no triable issue of material fact in that the treatment
provided by defendant was within the standard of care and did not cause plaintiff’s
injuries. In support of the motion, defendant filed a declaration of Dr. Robert M. Wilson,
a separate statement of undisputed material facts, and a copy of the records reviewed by
Dr. Wilson. The motion was noticed to be heard February 14, 2013.
       Wilson, a physician board certified in orthopedic surgery and former director of
physical therapy at a hospital and a physical therapy center, declared that, prior to being
treated by defendant, plaintiff had “quite an extensive history of complaints [beginning in
1993] involving her legs, with many symptoms being experienced only in the left leg and
the left side of her body in general. [Plaintiff’s] numerous and frequent healthcare

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       Kakita was not served in the proceeding, and she did not appear.

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providers found that in addition to having osteoarthritis, fibromyalgia, and degenerative
disc disease, [plaintiff] also likely suffers from a somatoform disorder.” Wilson
concluded to a reasonable degree of medical probability that the symptoms plaintiff
reported concerning her left knee were symptoms of these diseases and conditions and
were not the result of the Pilates exercise she performed on August 7, 2007.
       On January 15, 2013, plaintiff made an ex parte application to continue the
hearing on the motion and the trial (set for March 2013) for 9 to 12 months to secure
counsel to represent her. On January 30, 2013, the court continued the hearing on the
summary judgment motion and plaintiff’s application for a continuance to February 27,
2013. A status conference regarding plaintiff’s legal representation was set for the same
date. Plaintiff did not file opposition to the summary judgment motion. On February 20,
2013, defendant filed a notice that plaintiff had not filed opposition.
       On February 26, 2013, the court posted a tentative ruling granting the motion for
summary judgment. In the tentative ruling, the court stated that defendant presented a
declaration of Dr. Wilson, an expert in orthopedics. The court stated Wilson declared he
reviewed plaintiff’s medical records. He summarized the history of plaintiff’s
complaints, treatment and outcome, and concluded that her care and treatment complied
at all times with the standard of care and did not cause or contribute to any injury she
sustained. Based on Wilson’s declaration, the court concluded defendant satisfied its
burden to show entitlement to judgment as a matter of law. The court noted that
plaintiff’s opposition was due February 13, 2013. No opposition was filed. Accordingly,
in the tentative ruling, the court granted the motion.
       On February 27, 2013, the court put the matter over to March 6, 2013 for
argument on the motion to continue the hearing.
       On March 6, 2013, plaintiff argued the court should grant her application for a
continuance. The court denied a continuance and granted summary judgment to
defendant. While the court was stating its ruling, plaintiff requested to respond to one
thing the court had said concerning her request for a continuance. The court denied the



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request.2 The court adopted its tentative ruling in its entirety, granting judgment to
defendant.


                                       DISCUSSION


       Plaintiff does not challenge the ruling denying her request for a continuance. Nor
does she challenge the court’s finding that defendant met its burden of showing it was
entitled as a matter of law to summary judgment. Plaintiff’s sole contention is that it was
an abuse of discretion and violation of due process to grant summary judgment without
allowing her to speak at the hearing in opposition to the summary judgment motion. We
disagree with the contention.
       “A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 473c, subd. (c).) . . . In the trial court, once a moving defendant has
‘shown that one or more elements of the cause of action, even if not separately pleaded,
cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable
issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials


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        Plaintiff and the court engaged in the following colloquy. “Ms. Witt: You are
granting a motion for summary judgment, your honor? [¶] The Court: Ms. Witt, I have
listened to what you have to say. I have had this case now . . . for two years. I have
extended the time for summary judgment. I have - - [¶] Ms. Witt: But, your honor - -
[¶] The Court: Please don’t interrupt me. The motion is granted. . . . Counsel is to give
final notice and prepare a judgment . . . by the 13th of March. [¶] Ms. Witt: Your honor,
could I respond to one thing? [¶] The Court: No, no, no. Not at this point. I have
listened to what you have to say. I have given you continuances. At this point, there is
nothing further. [¶] Ms. Witt: I don’t believe you are giving me the same continuances
as you would have if I were an attorney. [¶] The Court: I have given you more, actually.
The case generally with an attorney would not have gotten this - - [¶] Ms. Witt: I am
talking about if a new attorney had stepped in. You yourself had just said to me if a new
attorney had stepped in, you would have given them additional time to prepare and to go
on. [¶] The Court: Ms. Witt - - [¶] Ms. Witt: I am being put in a position where I am
the attorney. I am not an attorney and you are not - - [¶] The Court: We’re done.
Thank you.”

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of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
       “The opposition papers shall include a separate statement that responds to each of
the material facts contended by the moving party to be undisputed, indicating whether the
opposing party agrees or disagrees that those facts are undisputed. The statement also
shall set forth plainly and concisely any other material facts that the opposing party
contends are disputed. Each material fact contended by the opposing party to be disputed
shall be followed by a reference to the supporting evidence. Failure to comply with this
requirement of a separate statement may constitute a sufficient ground, in the court’s
discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).) If the
movant made a prima facie showing of entitlement to summary judgment, and the
opponent of the motion did not file a separate statement, the court may conclude the
opponent failed to meet its burden to show the existence of a triable issue and grant
summary judgment. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th
408, 416.)
       Preliminarily, we note that plaintiff’s contention mischaracterizes the record:
plaintiff did not ask to argue in opposition to the summary judgment motion. She asked
to respond to something that was said concerning her request for a continuance. The
court cannot be faulted for failing to afford plaintiff an opportunity that plaintiff did not
request.
       In any event, it is undisputed both that defendant met its burden to show
entitlement to judgment as a matter of law and that plaintiff filed no declaration by an
expert or other papers in opposition. In these circumstances, the court had discretion to
conclude plaintiff failed to meet her burden to show the existence of a triable fact and to
grant judgment to defendant. (Code Civ. Proc., § 437c, subd. (b)(3).) Plaintiff does not
show how any denial of an opportunity to argue at the hearing rendered the judgment a
prejudicial abuse of discretion. Plaintiff had the burden to demonstrate, by reference to
evidence in the record, that there was a triable issue of material fact. The burden cannot

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be met by an argument. Accordingly, the grant of summary judgment was not an abuse
of discretion.


                                          DISPOSITION


       The judgment is affirmed. Defendant Physical Therapy Specialists of Beverly
Hills shall recover its appeal costs from plaintiff, Diane Witt.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                           KIRSCHNER, J.*


       We concur:



                     TURNER, P.J.



                     BAKER, J.




       *
        Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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