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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.”



                                              2
                Both defendant doctors objected to Dr. Cantor’s opinion as lacking in
foundation, and the trial court agreed. The court continued the hearing for nearly a
month to allow Midyette to submit evidence to establish a proper foundation for his
expert’s opinion.
                Dr. Cantor tried again in an amended declaration, this time listing the
records he had reviewed. Once again, the court found the evidence inadequate, this time
giving Midyette’s counsel a strong hint as to what was required. “There’s nothing in the
declaration about how the doctor got the records, you know, by subpoena or – there’s no
way for me to tell that this list of healthcare providers and the records he reviewed are the
                                                                                                 1
appropriate ones.” The court continued the hearing yet again to May 31.
                At the continued hearing on May 31, the court stated it had not received the
latest declaration from Dr. Cantor, so – despite the earlier “last chance” admonition – the
hearing was continued once more, to give the court an opportunity to review the
declaration and to give the doctor-defendants time to respond to it.
                The final hearing on the summary judgment motion took place on June 7,
2013, nearly two months after it was first noticed for hearing. By this time, the trial court
had Dr. Cantor’s third attempt to authenticate the medical records forming the basis of his
opinion. The court still found it insufficient. The court issued a tentative ruling on June
6, explaining exactly what should have been done to authenticate these records properly,
but stating that Midyette had been given enough time to provide admissible evidence.
Any further continuances would be unfair to the moving parties. Accordingly, the
tentative ruling was to grant the motions.
                Just before midnight on June 6, Midyette filed two declarations,
conforming to the comments the court had made in the tentative ruling. On the morning
of the hearing, yet another Cantor declaration was filed, once again attempting to provide

         1
                “I am going to give you one last chance to fix this, and you better get it right. . . . [T]his is your
last chance.”


                                                          3
a proper foundation for his opinion. The court refused to consider these late-filed
declarations, observing that they had been filed after the tentative ruling had laid out for
counsel what should be done. The court granted the doctors’ motions for summary
judgment and entered judgment in their favor.
                                        DISCUSSION
              As stated above, Midyette has defined the issue of this appeal very
narrowly. He asserts the trial court erred when it refused to consider the three late-filed
declarations. One misconception should be cleared up immediately. The trial court did
not refuse to consider the third Cantor declaration, filed on May 24 in anticipation of the
hearing on May 31. The declaration it refused to consider was the one filed on the
morning of June 7, the day of the hearing. Although it is easy to lose one’s way in the
forest of Cantor declarations, it is plain from the record that the court declined to consider
the latest iteration, not the one filed in May.
              We review the trial court’s refusal to consider late-filed papers for an abuse
of discretion. Midyette never made a request for a continuance under Code of Civil
Procedure section 437c, subdivision (h), to obtain additional time to submit opposition
evidence. Nevertheless, the trial court, in an abundance of caution, gave Midyette
multiple chances to submit admissible evidence
              “A trial court has broad discretion under rule 3.1300(d) of the California
Rules of Court to refuse to consider papers served and filed beyond the deadline without
a prior court order finding good cause for late submission. [Citations.]” (Bozzi v.
Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) “‘An abuse of discretion is never
presumed but must be affirmatively established by the party complaining of the
provisions of the order. [Citations.] The burden is on the party complaining of the order
to establish an abuse of discretion, and unless a clear case of abuse is shown and unless
there has been a miscarriage of justice an appellate court will not substitute its opinion



                                                  4
and thereby divest the trial court of its discretionary power.’” (Fontana Paving, Inc. v.
Knecht, Garrison & Tait Associates, Inc. (1965) 238 Cal.App.2d 724, 726.)
              We can find no abuse of discretion here. On the contrary, it would have
been extremely problematic had the trial court considered the midnight declarations, after
essentially giving Midyette turn-by-turn directions to the destination. The court refused
to allow the explanation provided in the tentative ruling to be turned into “coaching,”
recognizing the unfairness to the moving parties. There was no miscarriage of justice
here.
                                     DISPOSITION
              The judgment is affirmed. Respondents are to recover their costs on
appeal.




                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




                                             5
