Smith v. Olympia Health Care CA2/5

Filed 8/23/23 Smith v. Olympia Health Care 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
NAILAH SMITH, B318987
Plaintiff and Appellant, (Los Angeles
County Super. Ct.
v. No. BC712013)
OLYMPIA HEALTH CARE, LLC et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Jay Ford, III, Judge. Dismissed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis for Plaintiff and Appellant.
Carroll, Kelly, Trotter & Franzen, David P. Pruett and
Carley M. Ryckman for Defendants and Respondents Olympia
Health Care and Alecto Healthcare Services Los Angeles.
Cole Pedroza, Kenneth R. Pedroza and David Z. Sohn for
Defendant and Respondent Christos Kalatzis.
Plaintiff Nailah Smith purports to appeal from an order
granting summary judgment in favor of defendant
anesthesiologist Christos Kalatzis, M.D., and an order granting
summary judgment in favor of defendants Olympia Health Care,
LLC, doing business as Olympia Medical Center (Olympia), and
Alecto Heathcare Services, doing business as Olympia Medical
Center (Alecto) in this medical malpractice action. Smith
contends the moving parties’ evidence was not sufficient to shift
the burden on summary judgment, and even if it was, triable
issues of fact exist based on the common knowledge doctrine or
res ipsa loquitur. We conclude, however, that the orders are
nonappealable, and therefore, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On June 25, 2018, Smith filed an action against Kalatzis,
Olympia, Alecto, and several additional treatment providers, for
medical malpractice, intentional infliction of emotional distress,
battery, concealment, and breach of fiduciary duty. On July 9,
2021, Kalatzis filed a motion for summary judgment on the
ground that he complied with the standard of care in the
community at all times and no alleged negligent act or omission
of his was a substantial factor in Smith’s injuries. Among other
evidence, he submitted a declaration from expert witness Gary J.
Nitti, M.D., providing details from Smith’s medical records and
Nitti’s opinion that Kalatzis complied with the standard of care.
On August 19, 2021, Olympia and Alecto filed a motion for
summary judgment on the grounds that the treatment rendered
by Olympia complied with the standard of care and did not cause
Smith’s injuries. In addition, Alecto did not operate Olympia at
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the time of Smith’s admission. Among other evidence, Olympia
and Alecto submitted Smith’s medical records, as well as the
declaration of general surgery specialist Leo J. Murphy, M.D.,
providing his findings and opinion that Olympia and its
employees acted entirely within the prevailing standard of care.
They also provided the declaration of nephrology expert
Madeleine Pahl, M.D.
On October 21, 2021, Smith’s attorney Suzanne Rand-
Lewis filed a declaration as a “preliminary opposition” to
Olympia and Alecto’s motion for summary judgment. Smith’s
attorney declared that she was unable to complete Smith’s
opposition to the motion for summary judgment due to a medical
emergency. She asked the trial court to continue the hearing and
permit Smith to file her opposition by October 28, 2021.
Olympia and Alecto objected to the Smith’s request for a
continuance. They noted that Smith’s deposition had been
continued previously due to her attorney’s incapacity resulting
from a medical emergency. In addition, two prior motions for
summary judgment brought by other defendants had been
granted due to Smith’s failure to file any opposition to the
motions or appear for either hearing.
On October 26, 2021, Smith’s attorney filed a declaration as
a “preliminary opposition” to Kalatzis’s motion for summary
judgment. Based on an adverse reaction during a follow up
procedure, the attorney had been unable to complete Smith’s
opposition to Kalatzis’s motion. She requested a one-week
continuance of the hearing and permission to file Smith’s
opposition. Kalatzis objected to the continuance.
On November 4, 2021, Kalatzis filed a notice of non-
opposition stating that no opposition had been filed to his motion
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for summary judgment. The same day, a hearing was held on the
motion for summary judgment filed by Olympia and Alecto.
Attorney Timothy Rand-Lewis appeared for Smith and asked for
a continuance of the hearing on the ground that Smith’s attorney
was unavailable due to medical issues.1 He represented that
attorney Gary Rand, whose name was also on the pleadings, had
retired. The trial court asked counsel to submit supplemental
briefing regarding the request for a continuance and encouraged
Smith to associate in counsel to assist with the case.
Kalatzis, Olympia, and Alecto submitted supplemental
briefing. A hearing was held on the motions for summary
judgment on November 9, 2021. Timothy appeared for Smith.
The trial court found that the moving parties carried their initial
burdens to make a prima facie showing that one or more
elements of the causes of action cannot be established, the burden
shifted to Smith, and Smith failed to meet her burden. The trial
court instructed the moving parties to each prepare an order
granting the respective motion for summary judgment. The court
noted that pursuant to the preliminary oppositions, the court had
expected to receive proper opposition pleadings from Smith,
albeit untimely, but no additional opposition had been received.
On December 2, 2021, the trial court entered an order
granting Kalatzis’s motion for summary judgment. The order
stated, “IT IS HEREBY ORDERED that said Motion for
Summary Judgment is granted and judgment shall be entered
forthwith as requested in said Motion in favor of CHRISTOS
KALATZIS, M.D. and against Plaintiff.”
1 Because the attorneys appearing for Smith share the
same last name, they will be referred to individually by their first
names for clarity.
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On December 20, 2021, the court entered an order granting
the motion for summary judgment brought by Olympia Health
Care, LLC, doing business as Olympia Medical Center, and
Alecto Health Care Services Los Angeles, LLC, erroneously sued
as Alecto Health Care Services Los Angeles, LLC, doing business
as Olympia Medical Center. The order stated that Olympic and
Alecto “are entitled to Summary Judgment as a matter of law
and that said Motion for Summary Judgment is GRANTED. [¶]
IT IS SO ORDERED.”
On December 28, 2021, Olympia and Alecto filed and
served a “notice of entry of judgment,” attaching only the
December 20, 2021 order and no other document. On
December 29, 2021, Kalatzis filed and served a “notice of entry of
judgment,” attaching only the December 2, 2021 order and no
other document.
On February 25, 2022, Smith filed a notice of appeal from
the order entered on December 2, 2021. That same day, she filed
the notice of appeal from the order entered on December 20,
2021. The two appeals were consolidated in this court under one
case number.
On April 14, 2022, this appellate court notified Smith that
the December 20, 2021 order attached to her civil case
information statement was not a final judgment entered after an
order granting summary judgment and was therefore
nonappealable.
This court requested that Smith provide an appealable judgment
within 15 days, or if no final judgment had been entered, to
demonstrate in writing why the appeal should not be dismissed.
Smith filed a 10-page response arguing that this court must
construe the December 20, 2021 order as incorporating an
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appealable judgment. Smith asserted that she should not be
penalized for the defendants’ failure to properly name the
judgment submitted to the trial court.
This court issued an order deferring the final
determination of jurisdiction to the Division assigned to hear the
appeal. On August 4, 2023, this court notified the parties that
both the December 2, 2021 order and the December 20, 2021
order were orders granting summary judgment motions, and
therefore nonappealable. The parties filed letter briefs
addressing appealability.
DISCUSSION
The parties concede that the December 2, 2021 order and
the December 20, 2021 order are nonappealable. Smith contends
this court should construe the orders to incorporate appealable
judgments in the interests of justice and to avoid delay. Kalatzis
does not oppose this court reaching the merits because the matter
has been briefed, and Olympia and Alecto ask that we amend the
December 20, 2021 order to make it a judgment. We conclude
that we do not have jurisdiction to review the nonappealable
orders, and to the extent that we have discretion to amend or
construe the orders to incorporate final judgments, we decline to
do so.
“In California, the right to appeal is wholly statutory.
[Citation.] In order to exercise that right an appellant must take
an appeal from a statutorily declared appealable judgment or
order (Code Civ. Proc., § 904.1) . . . [¶] An order granting a
motion for summary judgment is not among the types of orders
specified in Code of Civil Procedure section 904.1.” (Allabach v.
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Santa Clara County Fair Ass’n. (1996) 46 Cal.App.4th 1007, 1010
(Allabach).) In addition to the provisions for reconsideration of a
ruling provided in Code of Civil Procedure sections 473 and 1008,
the trial court has inherent authority to change its decision at
any time prior to the entry of judgment. (Darling, Hall & Rae v.
Kritt (1999) 75 Cal.App.4th 1148, 1156.)
In this case, we have only nonappealable orders granting
the motions for summary judgment and no judgment. The
statutory prerequisite for appellate review is absent. This case is
distinguishable from those in which an appeal is taken
prematurely from an order granting summary judgment, but a
judgment was subsequently entered. In those circumstances,
courts often construe the order as taken from the subsequent
judgment. (See, e.g., Allabach, supra, 46 Cal.App.4th at p. 1010.)
Some appellate courts have simply declared nonappealable
orders to include appealable judgments (see, e.g., Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7), but as
the appellate court in Shpiller v. Harry C’s Redlands (1993) 13
Cal.App.4th 1177, 1180 (Shpiller) explained: “[T]his court, and
most, if not all appellate courts, have repeatedly admonished
appellants about the failure to make the preliminary and
fundamental determination that what they are appealing from is,
in fact, an appealable order or judgment. (This, of course,
assumes the existence of an order or judgment.) Such
admonishments being of little avail, California Rules of Court,
rule 13 was amended, effective July 1, 1989, to require that every
opening brief contain ‘either a statement that the appeal is from
a judgment that finally disposes of all issues between the parties
or a statement explaining why the order or nonfinal judgment is
appealable.’ [Fn. omitted.] [¶] It is our experience that, despite
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the amendment of rule 13 of the California Rules of Court,
parties continue to ‘appeal’ from nonexistent orders and
judgments and/or from documents which are not even orders or
judgments.” (Id. at p. 1179.) The Shpiller court dismissed the
appeal in that case.
This Division provided a similar warning in Hill v. City of
Long Beach (1995) 33 Cal.App.4th 1684, 1695–1696, by refusing
to rescue a defective appeal from an order sustaining a demurrer
where no judgment of dismissal had been entered. Noting the
appellant’s resistance to obtaining an appealable order, the court
advised of “the trend in this district and elsewhere to be less
indulgent of parties who fail to perfect their rights of appeal.”
(Ibid.)
Notwithstanding strong admonitions against appeals from
nonappealable orders, courts have continued to occasionally
construe nonappealable orders to be appealable judgments for
judicial efficiency. We reject the invitation to do so here.
Obtaining a judgment after an interlocutory order should not be
unnecessarily confusing, expensive, or time-consuming. Shortly
after notices of appeal were filed in this case, and prior to the
submission of briefs, this court alerted the parties that there was
no appealable judgment and asked that one be provided. The
parties did not do so, and this court advised them that the issue
of jurisdiction would be addressed by the panel. The parties
proceeded with briefing the merits without attempting to remedy
the lack of a judgment. This court gave the parties a second
opportunity to address the issue of nonappealable orders; again,
the parties did nothing to seek to obtain and provide an
appealable judgment. The parties have not asserted that any
unique extenuating circumstances prevented them from
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obtaining a judgment. Given the long-settled procedure for
obtaining a judgment and initiating an appeal, the ample time
and opportunity to obtain and supply an appealable judgment,
and the lack of unique extenuating circumstances, to the extent
that this court has discretion to construe or amend the trial
court’s orders to include a final judgment, we decline to do so and
dismiss the appeal for lack of jurisdiction. If the issues between
the parties are eventually resolved in a final judgment, Smith
may then pursue an appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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