Metropolitan News-Enterprise


Tuesday, December 2, 2014


Page 3


No Error in Judge Declining to Consider Declaration Filed on Morning of MSJ Hearing—C.A.

Fourth Declaration of Expert Came After Deficiencies Were Detailed in Tentative Ruling


By a MetNews Staff Writer


The Court of Appeal held yesterday that a judge properly refused to consider a doctor’s declaration in opposition to the defendants’ motion for summary judgment in a medical malpractice case that was submitted on the morning of the hearing.

The judge was also justified, the court declared, in disregarding a declaration from the plaintiff and one from his attorney, filed just before midnight preceding the hearing, after a tentative ruling had been posted pointing out the deficiencies in the plaintiff’s showing.

Justice William W. Bedsworth, writing for the Fourth District’s Div. Three, said in an unpublished opinion:

“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.”

The plaintiff’s expert witness, identified in the opinion only as “Dr. Cantor,” had expressed an opinion that the defendant doctors had not met the standard of care, but did not set forth a foundation for that opinion in his initial declaration, in an amended one, or in a third one.

At the third hearing on the defendants’ motion for summary judgment, Orange Superior Court Judge Robert J. Moss would not consider a fourth declaration filed that morning, and Midyette appealed from the judgment awarded the defendants, claiming abuse of discretion.

Bedsworth responded:

“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.”

The case is Midyette v. Kuetel, G048901.


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