Filed 4/8/14 Biglay v. Berkowitz CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


TRACY BIGLAY et al.,                                                 B246513

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. EC056345)
         v.

MAURICE BERKOWITZ et al.,

         Defendants and Respondents.



         APPEALS from judgments of the Superior Court of Los Angeles County.
Donna Fields, Judge. Affirmed.


         Kenneth M. Sigelman & Associates, Kenneth M. Sigelman, Penelope A. Phillips
for Plaintiffs and Appellants.


         LaFollette, Johnson, DeHaas, Fesler & Ames, Don Fesler, David J. Ozeran for
Defendant and Respondent Maurice Berkowitz.


         Reback, McAndrews, Kjar, Warford, Stockalper & Moore, Patrick Stockalper,
Harlan Petoyan for Defendant and Respondent Robert Pereyra.
                  ___________________________________________________
       Appellants did not file a substantive opposition to respondents’ motions for
summary judgment, and instead sought a continuance pursuant to Code of Civil
Procedure section 437c, subdivision (h).1 The declaration accompanying the request for
continuance failed to explain what facts could be obtained through additional discovery
that would justify an opposition. The declaration was therefore deficient, and the trial
court did not err by denying a continuance and granting summary judgment.
                                     BACKGROUND
       The complaint in this matter was filed in July 2011. The plaintiffs, Michael
Biglay and Tracy Biglay, alleged that the defendants, Maurice Berkowitz, M.D., East
Valley Hematology & Oncology Medical Group, Inc., Robert Pereyra, M.D., and Foothill
Surgical Specialists, negligently failed to possess or exercise the requisite degree of
knowledge or skill in their treatment of Michael Biglay. Michael Biglay stated a claim
for medical malpractice and Tracy Biglay, his wife, stated a claim for loss of consortium.
       Following the filing of the complaint, Michael Biglay died. A first amended
complaint was filed by Tracy Biglay in May 2012, on behalf of herself and as guardian
ad litem for the couple’s two minor children. The first amended complaint contained
three causes of action: (1) wrongful death; (2) loss of consortium; and (3) recovery of
medical expenses.
       In September 2012, Berkowitz and Pereyra separately moved for summary
judgment. They argued that the care and treatment they rendered to Michael Biglay met
the standard of care, and that their acts and omissions did not cause or contribute to
Michael Biglay’s death. Briefly, Pereyra contended that there was no viable surgical
treatment he could have performed to alleviate Michael Biglay’s cancer symptoms, and
Berkowitz argued that Michael Biglay’s decision to decline intravenous chemotherapy
treatment resulted in a negative outcome, a consequence that Berkowitz explicitly
advised was likely to occur. Both defendants’ motions were supported by declarations


1     Unless otherwise noted, all further statutory references are to the Code of Civil
Procedure.


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from medical expert witnesses. At the time the motions were filed, trial was set for
January 7, 2013.
       On November 21, 2012, plaintiffs filed a perfunctory opposition to the motions for
summary judgment. The opposition contained no argument relevant to the points raised
in the moving papers, but instead simply requested that a continuance of the motion be
ordered so as to permit additional discovery pursuant to section 437c, subdivision (h).
       Accompanying the opposition was a declaration from Kenneth Sigelman,
plaintiffs’ attorney. Sigelman declared that there are two attorneys in his office, and that
on October 9, 2012, they both began trial in a medical negligence case in San Diego.
Closing arguments were not completed until November 20, 2012, and the jury was
currently deliberating at the time of the declaration. Sigelman stated that during the trial,
and in the weeks leading up to the trial, it was “virtually impossible” for either attorney to
take a deposition in another case.
       Sigelman’s declaration went on to state that another trial for which he and his
associate were responsible was scheduled to begin in September 2012, and a total of four
motions for summary judgment were heard in the matter in July 2012. Trial was not
continued in that case until weeks before the scheduled commencement. Thus, during the
summer months, Sigelman’s time was devoted primarily to the case that went to trial and
the case involving four summary judgment motions.
       Sigelman further stated that his office contacted opposing counsel in the instant
case, requesting that their motions for summary judgment and the trial date be continued,
but no agreement was reached. His declaration concluded: “I am informed and believe
that facts essential to justify opposition to the pending motions for summary judgment . . .
will be elicited during the depositions of Defendants MAURICE BERKOWITZ, M.D.,
and ROBERT PEREYRA, M.D., which have not yet been taken for the reasons set forth
above.”
       On November 27, 2012, plaintiffs applied ex parte for an order continuing the trial
date. The trial court granted the ex parte application, setting trial for July 29, 2013.



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         The motions for summary judgment were heard on December 5, 2012. The trial
court noted that the Sigelman declaration did not state “what essential evidence exists and
cannot yet be presented and reasons why they cannot be presented.” The court further
stated that plaintiffs had over a year to take the depositions of defendants but had not
done so. It denied plaintiffs’ requests for a continuance, and, finding that Pereyra and
Berkowitz met their burden in moving for summary judgment, entered judgment in their
favor.
         Plaintiffs timely appealed.
                                       DISCUSSION
         Plaintiffs argue that the Sigelman declaration submitted in opposition to the
motions for summary judgment complied with section 437c, subdivision (h), and
therefore a continuance was mandated. Plaintiffs further contend that, even if the
declaration did not strictly comply with section 437c, subdivision (h), the trial court
abused its discretion by denying a continuance.
         Section 437c, subdivision (h) provides: “If it appears from the affidavits
submitted in opposition to a motion for summary judgment or summary adjudication or
both that facts essential to justify opposition may exist but cannot, for reasons stated, then
be presented, the court shall deny the motion, or order a continuance to permit affidavits
to be obtained or discovery to be had or may make any other order as may be just. The
application to continue the motion to obtain necessary discovery may also be made by
ex parte motion at any time on or before the date the opposition response to the motion is
due.” “Subdivision (h) was added to section 437c “‘to mitigate summary judgment’s
harshness”’” as to “‘an opposing party who has not had an opportunity to marshal the
evidence.’ [Citation.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253
(Cooksey).)
         The law on the standard for continuances under section 437c, subdivision (h) is
somewhat conflicted. A continuance has been deemed “virtually mandated” and
“mandatory” upon submission of a declaration meeting the requirements of section 437c,
subdivision (h). (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; Lerma v.

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County of Orange (2004) 120 Cal.App.4th 709, 714.) This standard has recently been
questioned, however, with one court noting that a mandatory continuance is “not
compelled by the terms of the statute,” which allow a trial court to deny summary
judgment, grant a continuance, or “‘make any other order as may be just.’ (§ 437c, subd.
(h), italics added.) This third option would appear to encompass a denial of relief, and
plainly contemplates an exercise of discretion, presumably to be informed by the kind of
factors traditionally considered in such contexts, including the requesting party’s
diligence or lack thereof.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038, fn. 7.)
       We need not analyze at length the correct interpretation of section 437c,
subdivision (h), though, because the Sigelman declaration—which simply stated “facts
essential to justify opposition” would be elicited during the deposition of Berkowitz and
Pereyra—clearly did not comply with the statute. “Code of Civil Procedure section 437c,
subdivision (h) requires more than a simple recital that ‘facts essential to justify
opposition may exist.’ The affidavit or declaration in support of the continuance request
must detail the specific facts that would show the existence of controverting evidence.”
(Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 715.) The Sigelman
declaration detailed no facts whatsoever. As explained by the Lerma court, “The statute
cannot be employed as a device to get an automatic continuance by every unprepared
party who simply files a declaration stating that unspecified essential facts may exist.
The party seeking the continuance must justify the need, by detailing both the particular
essential facts that may exist and the specific reasons why they cannot then be
presented.” (Id. at p. 715-716; see also Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548;
Cooksey, supra, 123 Cal.App.4th at p. 255.)
       Although the Sigelman declaration may have attempted to explain why the press
of business made obtaining evidence difficult, it did not explain what facts existed that
were likely to make a difference to the outcome of the summary judgment motion. The
posture of this case—a medical malpractice case alleging negligent care and treatment,
and failure to disclose a significant risk—did not naturally lead to an inference that
summary judgment could be opposed only through the depositions of respondents, or that

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their depositions would likely yield triable issues of material fact. The motions for
summary judgment were supported by expert declarations. To adequately oppose the
motions, plaintiffs likely needed an expert opinion supporting their case. As informed
consent was an issue raised by the complaint and the summary judgment motions, expert
testimony was particularly appropriate. (See Betterton v. Leichtling (2002) 101
Cal.App.4th 749, 756 [While the decision “to disclose a significant risk is not a matter
reserved for expert opinion[,] [w]hether a particular risk exists . . . may be a matter
beyond the knowledge of lay witnesses, and therefore appropriate for determination
based on the testimony of experts.”].) The Sigelman declaration did not discuss any
attempts to procure an expert opinion, or even state that an expert would need to review
respondents’ depositions before rendering an opinion.
       But, the bottom line is, plaintiffs never explained how the depositions would lead
to triable issues of material fact. Did plaintiffs believe that the medical records contained
falsehoods that would be exposed during the depositions? Did they think the depositions
would show that the opinions of the respondents’ experts were based on a factual
foundation that was subject to dispute? Those are just a few of the possibilities. Having
no explanation of what relevant facts may have been gleaned from the depositions of
Berkowitz and Pereyra, the declaration failed to meet the requirements of section 437c,
subdivision (h).
       The analysis then turns to whether the trial court should have employed its broad
discretionary power to grant a continuance. (Johnson v. Alameda County Medical Center
(2012) 205 Cal.App.4th 521, 532.) We review the trial court’s denial of a continuance
for an abuse of discretion. (Cooksey, supra, 123 Cal.App.4th at p. 254.)
       No abuse of discretion is apparent. The failure of the Sigelman declaration to
detail necessary facts was alone enough to deny the request for a continuance. (Cooksey,
supra, 123 Cal.App.4th at p. 255.) Furthermore, the trial court could appropriately
consider plaintiffs’ lack of diligence in seeking discovery. (Id. at p. 257; Rodriguez v.
Oto, supra, 212 Cal.App.4th at p. 1038.) Although the Sigelman declaration may have
provided a plausible excuse for the failure to take defendants’ depositions in the period

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immediately preceding the opposition to the summary judgment motions, the declaration
did not explain why the depositions could not have been taken in the more than year-long
period since the case was filed. Indeed, the declaration made no showing that the
plaintiffs had engaged in any discovery, and the record indicates that by the time their
opposition was due, plaintiffs had merely propounded form interrogatories. Given these
deficiencies, the trial court was perfectly within its rights to deny a continuance.2
                                      DISPOSITION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
I concur:


       ASHMANN-GERST, J.




2      The lack of any apparent prejudice to defendants if a continuance had been
granted does not evidence an abuse of discretion. An absence of prejudice “does not
relieve [plaintiffs] from making the requisite showing in support of [a] request for a
continuance” under section 437c, subdivision (h). (Cooksey, supra, 123 Cal.App.4th 246,
259.)


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       I dissent.
       Section 437c, subdivision (h), “mandates a continuance of a summary judgment
hearing upon a good faith showing by affidavit that additional time is needed to obtain
facts essential to justify opposition to the motion. [Citations.]” (Cooksey v. Alexakis
(2004) 123 Cal.App.4th 246, 253-254.) Subdivision (h) was added to section 437c to
mitigate the harshness of summary judgment on “an opposing party who has not had an
opportunity to marshal the evidence.” (Mary Morgan, Inc. v. Melzark (1996) 49
Cal.App.4th 765, 770.) Requests for a continuance under section 437c, subdivision (h)
are to be liberally granted. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634 (Frazee).)
       In this case, a continuance was denied and summary judgment granted, despite the
parties’ failure to schedule and take defendants’ depositions, precluding plaintiffs from
obtaining relevant evidence necessary to oppose defendants’ motions.
       The declaration submitted in support of plaintiffs’ request for a continuance set
forth the reasons why defendants’ depositions had not been taken. Plaintiffs’ counsel
Sigelman explained that there are only two attorneys in his office, and that both attorneys
spent most of the summer of 2012 preparing for a September trial in a medical negligence
case, including litigating four motions for summary judgment that were heard in July of
2012. Sigelman stated in his declaration that both he and his associate were engaged in a
jury trial of another medical negligence case in October and November of 2012 and that
during the weeks preceding that trial, it was impossible for either of them to devote time
to deposition discovery in other matters. Sigelman further stated that his office contacted
defendants’ counsel to request that the summary judgment motions and the trial date be
continued for a period of time to allow discovery to be completed.
       Sigelman’s declaration makes the requisite good faith showing that plaintiffs
needed additional time to obtain facts essential to oppose the summary judgment
motions. Plaintiffs sought a continuance to enable them to depose Michael Biglay’s
treating physicians, an essential source of information pertaining to the exercise of the
standard of care in this medical negligence case.
       Case authority in this area underscores the necessity of a continuance when the
testimony of a critical witness is not available to oppose summary judgment. In Bahl v.
Bank of America (2001) 89 Cal.App.4th 389 (Bahl), and in Frazee, supra, 95 Cal.App.4th
627, the appellate courts held that a continuance was required because the plaintiffs in
both cases had demonstrated that they could not prepare their respective oppositions to
the motions for summary judgment because transcripts for critical depositions had not yet
been received. (Bahl, at p. 396; Frazee, at p. 635.)
       Defendants conceded during oral argument that they would not have been
prejudiced by a continuance of the summary judgment motion. They could not have been
prejudiced, because the trial court had already granted plaintiffs’ ex parte application to
continue the trial date. The ex parte application to continue the trial date was based on
the identical reasons given in plaintiffs’ request to continue the summary judgment
motion. The trial court found those reasons constituted good cause to continue the trial
date, even though trial continuances are disfavored (Cal. Rules of Court, rule 3.1332(c)
[“continuances of trial are disfavored”]), but not to continue the summary judgment
motion, when “such continuances are to be liberally granted.” (Bahl, supra, 89
Cal.App.4th at p. 395; Frazee, supra, 95 Cal.App.4th at p. 634.)
       Although a motion for a continuance rests within the sound discretion of the trial
court, the court must exercise its discretion “‘“with due regard to all interests involved,
and the refusal of a continuance which has the practical effect of denying the applicant a
fair hearing is reversible error. [Citations.]”’ [Citation.]” (Oliveros v. County of
Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) Given the totality of the circumstances
presented here, the trial court abused its discretion in denying plaintiffs’ request for the
continuance. The judgment accordingly should be reversed.


                                                   ___________________________, J.
                                                   CHAVEZ



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