Stance v. Sutter Solano Medical Center CA1/1 ( 2023 )

Filed 9/19/23 Stance v. Sutter Solano Medical Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
OMARI STANCE,
Plaintiff and Appellant,
A165947
v.
SUTTER SOLANO MEDICAL (Solano County
CENTER, Super. Ct. No. FCS053064)
Defendant and Respondent.
Plaintiff Omari Stance sued Sutter Solano Medical Center (SSMC) and
Dr. William Melton, M.D., based on Stance’s mother’s death shortly after her
treatment by Dr. Melton at SSMC. The trial court granted SSMC’s motion
for summary judgment, concluding that (1) the hospital was not liable for any
negligence by Dr. Melton on a theory that he was its ostensible agent or de
facto employee and (2) Stance failed to rebut evidence that SSMC’s nursing
staff met the governing standard of care.
On appeal, Stance contends the trial court erred by granting summary
judgment on these grounds.1 Because the record on appeal does not contain
the memorandum of points and authorities in support of SSMC’s motion for
1 Stance’s sister, Halima Stance, is also a plaintiff, but she did not
appeal from the judgment.
summary judgment, we are unable to determine whether he is entitled to
reversal. Therefore, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the afternoon of March 14, 2018, Stance’s 54-year-old mother, Sonja
Stephens, was admitted to SSMC’s emergency room with “complaints of
diarrhea, fever, body ache[,] and weakness.” Around 2:30 p.m., Dr. Melton
examined Stephens “and noted that her physical examination findings were
all within normal limits other than some mild diffuse tenderness to palpation
of her abdomen.” At his direction, Stephens received “medication for nausea,
medication for possible bacterial infection, IV fluids to address dehydration[,]
and morphine for pain.”
Around 5:30 p.m., after her vital signs were confirmed to be normal,
Stephens was discharged from the hospital “per Dr. Melton’s orders with
prescriptions for medication, standard instructions regarding care for
worsening diarrhea[,] and . . . a referral to . . . [an] oncologist.” Two days
later, on March 16, 2018, Stephens died at home. The autopsy report lists
her cause of death as “undetermined.”
Stance and his sister sued SSMC and Dr. Melton in June 2019. After
SSMC’s partially successful demurrer to the operative complaint, Stance’s
remaining claims were an individual cause of action for wrongful death and a
survivor cause of action for professional medical negligence. SSMC then filed
a motion for summary judgment, which the trial court granted. Final
judgment in SSMC’s favor was entered in April 2022.2
2 Dr. Melton filed a separate motion for summary judgment, which the
trial court granted the same day Stance filed this appeal. No appeal from a
judgment in the doctor’s favor has been filed in this court.
2
II.
DISCUSSION
A. We Have Jurisdiction Over the Appeal.
Initially, we reject SSMC’s claim that Stance did not timely file the
appeal, which if true would mean we lack jurisdiction over it. (See
Conservatorship of Townsend (2014) 231 Cal.App.4th 691, 701.) Contrary to
SSMC’s position, the appeal is from the judgment, not the order granting
summary judgment, and Stance’s deadline to appeal was further extended
because he filed a motion for a new trial.
Under California Rules of Court, rule 8.104(a), “a notice of appeal must
be filed on or before the earliest of: [¶] (A) 60 days after the superior court
clerk serves on the party filing the notice of appeal a document entitled
‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment,
showing the date either was served; [¶] (B) 60 days after the party filing the
notice of appeal serves or is served by a party with a document entitled
‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment,
accompanied by a proof of service; or [¶] (C) 180 days after entry of
judgment.” The deadline is extended, however, “[i]f any party serves and
files a valid notice of intention to move for a new trial.” (Cal. Rules of Court,
rule 8.108(b).) “If the motion for a new trial is denied, the time to appeal
from the judgment is extended for all parties until the earliest of: [¶]
(A) 30 days after the superior court clerk, or a party serves an order denying
the motion or a notice of entry of that order; [¶] (B) 30 days after denial of the
motion by operation of law; or [¶] (C) 180 days after entry of judgment.” (Id.,
rule 8.108(b)(1).)
“An order granting summary judgment is not appealable—it is the later
judgment that is appealable.” (Johnson v. Alameda County Medical Center
(2012) 205 Cal.App.4th 521, 531.) Here, the trial court entered the order
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granting summary judgment on March 15, 2022, and on March 30, SSMC
gave notice of the order’s entry. Judgment was entered on April 5, and on
April 25 SSMC gave notice of its entry. Thus, contrary to the hospital’s claim
otherwise, the deadline to appeal began running on April 25, not March 30.
(See Cal. Rules of Court, rule 8.104(a)(1)(B).)
In turn, Stance’s motion for a new trial extended the deadline to
appeal.3 On April 8, 2022, Stance filed a notice of intent to move for a new
trial, which was timely because it was filed within 15 days of the date he was
served with notice of entry of judgment. (See Code Civ. Proc., § 659,
subd. (a)(2); Reyes v. Kruger (2020) 55 Cal.App.5th 58, 73.) The trial court
entered the order denying the motion for a new trial on June 24, and the
record does not show that it was served on Stance. Thus, he had 180 days
after the April 5 entry of judgment to appeal (see Cal. Rules of Court,
rule 8.108(b)(1)), a deadline he handily met by filing the notice of appeal on
July 12. In short, the appeal was timely.
B. The Record Is Inadequate to Assess Stance’s Claims.
A motion for summary judgment is properly granted “if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) A defendant moving for summary judgment must
present evidence that either “conclusively negate[s] an element of the
plaintiff’s cause of action” or “show[s] that the plaintiff does not possess, and
3 SSMC contends that Stance’s motion “was in actuality one for
reconsideration” under Code of Civil Procedure section 1008 and was
untimely under that statute. In ruling on the motion, the trial court
implicitly rejected SSMC’s characterization, and we agree that Stance
properly challenged the grant of summary judgment through a motion for a
new trial. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.)
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cannot reasonably obtain,” evidence needed to establish at least one element
of the claim. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853–
854.) If the defendant meets this burden, “the burden shifts to the plaintiff
. . . to show that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
We review de novo a trial court’s decision granting a motion for
summary judgment. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) “ ‘As a
corollary of the de novo review standard, the appellate court may affirm a
summary judgment on any correct legal theory, as long as the parties had an
adequate opportunity to address the theory in the trial court.’ ” (California
School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)
Although we review the grant of summary judgment de novo, “[a]s with
an appeal from any judgment, it is the appellant’s responsibility to
affirmatively demonstrate error.” (Lewis v. County of Sacramento (2001)
93 Cal.App.4th 107, 116.) Thus, an appellant “has the burden of providing an
adequate record” to enable our review. (Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502.) “ ‘ “A necessary corollary to
this rule [is] that a record is inadequate . . . if the appellant . . . ignores or
does not present to the appellate court portions of the proceedings below
which may provide grounds upon which the decision of the trial court could
be affirmed.” ’ ” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014)
229 Cal.App.4th 635, 644.)
The appellate record does not contain SSMC’s memorandum of points
and authorities in support of its motion for summary judgment. Stance
stated in his opening brief that he submitted this document as an exhibit to
that brief, but after this court returned the exhibit for non-conformance with
court rules, Stance did not re-submit it. The opening brief also says that
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Stance “intend[ed] to request that the Superior Court augment the record to
include . . . SSMC’s entire [motion for summary judgment],” but this
apparently never occurred.
Without the memorandum of points and authorities, we cannot
independently determine “if all the papers submitted” with the motion for
summary judgment demonstrate that summary judgment was properly
granted. (Code Civ. Proc., § 437c, subd. (c).) In particular, we cannot discern
all the bases for SSMC’s motion for summary judgment. It appears from
SSMC’s reply brief in support of the motion that it also claimed there were no
issues of triable fact as to the duty and causation elements of Stance’s claims.
Indeed, on appeal, SSMC argues that “the issue of Dr. Melton’s agency or
employment is a red herring” because Stance “did nothing to link the alleged
agency or employment with the necessary elements of breach of standard [of]
care, causation[,] or damages.” The trial court’s decision, however, did not
address Dr. Melton’s negligence or the element of causation. Rather, the
decision rested on the lack of evidence demonstrating either the hospital’s
vicarious liability for Dr. Melton’s acts or the standard of care for nurses.
Even if the court’s reasoning on these points had been incorrect, reversal
would not be warranted if SSMC raised other theories that did justify
summary judgment. (See California School of Culinary Arts v. Lujan, supra,
112 Cal.App.4th at p. 22.) By not providing an adequate record, Stance failed
to carry his burden to demonstrate reversible error.
III.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Bowen, J.*
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Stance v. Sutter Solano Medical Center A165947
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