J.People v. Sutter Bay Hospitals CA1/2
A171454
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 J.P. v. Sutter Bay Hospitals CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
J.P., a Minor, etc., et al.,
Plaintiffs and Appellants,
A171454
v.
SUTTER BAY HOSPITALS, (Alameda County Super. Ct.
No. RG19046060)
Defendant and Respondent.
Laura R. Holloway, a 37-year-old mother of two, died at Alta Bates
Summit Medical Center (Alta Bates) in 2018. Medical records indicate that
Holloway was found seizing on the floor of her hospital room on September 6;
she did not regain consciousness and was pronounced dead on September 8.
However, Holloway’s children claim that she died from respiratory failure on
September 4—two days prior to the represented seizures—after being
“accidentally over medicated” with double her prescribed dose of
hydromorphone, “a powerful, injectable, synthetic opiate pain medication
known as Dilaudid”; then hospital staff tried to cover up Holloway’s resulting
death by falsifying her medical records.
Holloway’s children sued Alta Bates (formally Sutter Bay Hospitals)
and appeal from the entry of summary judgment against them. In their
briefing to us, plaintiffs argue the trial court improperly relied on Alta
Bates’s expert declarations in granting the motion for summary judgment
1
because (1) plaintiffs submitted “substantial evidence” that the underlying
medical records were “inaccurate, false or fraudulent,” thus Alta Bates could
not carry its moving burden, and (2) even if the moving burden was satisfied,
plaintiffs’ evidence demonstrated a triable issue of fact as to the cause of
Holloway’s death. We are not persuaded. Based on our independent review
of the evidence, we agree with the trial court’s burden shifting and
determination that plaintiffs failed to raise a triable issue of fact regarding
causation. Therefore, we affirm summary judgment in favor of Alta Bates.
BACKGROUND
I. Factual Background
On August 30, 2018, Laura Holloway presented to the emergency
department at Sutter Solano Medical Center with complaints of “fever and
generalized body aches.” Holloway had been experiencing “dental problems”
for “several months . . . but ha[d] not been able to see a dentist” and was
diagnosed with a “Dental infection/Tooth abscess” and “Severe sepsis
secondary to dental abscess.” Holloway was admitted and given injectable
hydromorphone (Dilaudid) to manage her pain. “Despite [receiving] broad
spectrum antibiotics” to address the sepsis, Holloway “continued to have
fevers and facial swelling.” Thus, the attending physician “asked for an oral
surgery evaluation.”
On September 2, 2018, Holloway was transferred to Alta Bates for
evaluation and treatment by Daniel Nam, D.D.S., an oral maxillofacial
surgery specialist, because there was no dentist available at Sutter Solano.
On September 3, Jenna Dean, M.D., assumed care of Holloway at Alta
Bates. In her progress notes, Dr. Dean indicated “dentistry to see [Holloway]
today” and ordered a “panoramic jaw” X-ray. Around 11:45 a.m., Dr. Nam
evaluated Holloway, who reported pain in her “upper right jaw and face.”
2
Dr. Nam observed “[m]any teeth in general [were] fractured and carious” and
scheduled an appointment at his dental office “tomorrow morning for
assessment and extractions.” Holloway’s cell phone records indicate that she
made 10 telephone calls on September 3.
Records detailing “Medications and Administration” (MAR) reflect that
at 1:00 a.m. on September 4, 2018, Eileen Zheng, a registered nurse, gave
Holloway a “1 mg” injection of hydromorphone (Dilaudid). These records
further detail that at 1:11 a.m. on the same date, Eric Koch, a registered
nurse, also gave Holloway a “1 mg” injection of hydromorphone.1
Later that morning (September 4), around 8:30 a.m., Holloway was
transported by ambulance to Dr. Nam’s dental clinic where she was
evaluated by Amy Blake, D.D.S. Dr. Blake conducted a visual examination
and took another panoramic jaw X-ray.2 Her “procedure notes” represent
that “[n]early all” of Holloway’s “teeth [were] affected to varying degrees with
caries” and “multiple teeth [were] fractured with deep caries.” Dr. Blake
discussed with Holloway the plan “to have three teeth extracted” (tooth
Nos. 2, 4 & 6) and subsequently noted: “Teeth extracted with elevation and
forceps” without complications.
At 12:45 p.m., still on September 4, Holloway “returned [to Alta Bates]
from oral surgeon” and “request[ed] pain medication.” Cell phone records
reflect Holloway made a two-minute call at 12:51 p.m. Dr. Dean saw
1 Zheng subsequently testified at deposition that the 1:00 a.m. entry
was “an error” because she was “not in the hospital at 1:00 a.m.”; she had
administered the Dilaudid at 5:13 p.m. on September 4, as is later reflected
in the MAR.
2 The time “18:38 PM” is stamped on the X-ray. At deposition, Dr. Nam
was unable to explain the source of the time stamp.
3
Holloway again shortly after 1:00 p.m., and Holloway had a visit from the
hospital pastor around 2:30 p.m.
The next day, September 5, at approximately 7:00 a.m., an Alta Bates
nurse assessed Halloway while she was awaiting transfer back to Sutter
Solano. The nurse noted that Holloway was alert and oriented and gave her
“pain meds.”
Michael Huynh, M.D., evaluated Holloway before noon the same day.
Dr. Huynh reported that Holloway complained of “pain in [her] mouth where
recent extraction took place” but was otherwise “stable and was planned to
discharge back to [Sutter] Solano for continued care with IV antibiotics.”
At approximately 2:40 p.m. on September 5, Holloway was seen by
another nurse, who reported that Holloway was “alert” and “awake” but had
“flat affect” and “slow soft speech.” Holloway was given Dilaudid “for
generalized pain, mostly in face and abdomen,” and “kept safe and
comfortable” while “waiting [for] transfer back to Sutter Solano.”
In the early morning hours of September 6, shortly before 12:30 a.m.,
Susana Bell, C.N.A., found Holloway on the floor of her room and reportedly
“witnessed [a] 3 minute seizure.” “It was not clear how long she had been
down.” Bell alerted a nearby nurse, who called the rapid response team.
Clara Breen, a registered nurse and part of the rapid response team,
arrived as Holloway was “being lifted back to [bed].” Holloway was “staring
off, possibly still having partial seizures” and was given medication to break
the seizure, after which Holloway was “no longer with any jerking
movements, but continue[d] to stare off and [was] nonverbal.”
At 12:56 a.m., Tamika Bailey, M.D., examined Holloway “in person”
and noted “possible partial seizures” and “intermittent jerking of her arms
and legs” at the time of the exam. Dr. Bailey ordered a CT scan of Holloway’s
4
head, and the nurses notified Holloway’s mother, who was “out of town but
answered the call.” The CT scan showed “cerebral edema consistent with
anoxic brain injury and herniation”; that is, “severe and irreversible brain
damage.” Holloway was moved to intensive care for further evaluation and
intubated for airway protection.
The evening of September 6, 2018, Holloway was “examined in detail
multiple times” by different doctors. After conducting a neurology
examination, Matthew Arnold, M.D., suspected that Holloway “had some
arrhythmia or other event on [the] floor leading to anoxic injury, causing
secondary seizures (though . . . [the] seizures could have caused anoxia as
well).”
At 2:05 a.m. on September 7, a urine sample was collected from
Holloway and tested for opiates; the results came back negative.
Holloway progressed to “clinical brain death” due to “Anoxic
Respiratory Failure” and was declared dead on September 8, 2018. A
subsequent autopsy reported: “The etiology of the seizure is not determined
by the autopsy findings in this case. This patient may have been at increased
risk of seizure given the presence of sepsis.”
II. Procedural History
In December 2019, Holloway’s minor children, by and through their
guardian ad litem, filed a civil suit against Alta Bates and several other
doctors and entities. The complaint was amended multiple times, resulting
in a sixth amended complaint filed in December 2022 that asserted two
causes of action for medical negligence and battery. Plaintiffs alleged that
Holloway’s death was not caused by anoxic respiratory failure on September
6, as reflected in her medical records, rather she died from being
5
“accidentally over medicated with Dilaudid” on September 4, and defendants
purportedly tried to conceal her death by “falsif[ying]” her medical records.3
On February 15, 2024, Alta Bates moved for summary judgment or in
the alternative summary adjudication pursuant to Code of Civil Procedure
section 437c.4 It argued summary judgment was proper because the
“undisputed evidence confirms that Alta Bates met the standard of care at all
applicable times” and did not otherwise cause Holloway’s death.5
In support of its motion, Alta Bates submitted Holloway’s medical
records and the declarations of retained experts regarding the applicable
standard of care for doctors and nurses. Christine Tarver, D.N.P., Alta
Bates’s nursing expert, opined that the nurses rendered reasonable care and
“that no alleged act or omission of any of the nurses or certified nursing
assistance at [Alta Bates] was a substantial factor in causing [Holloway’s]
alleged harm.” Tarver specifically noted the “discrepancy” suggesting that
Dilaudid was administered to Holloway on September 4 at both 1:00 a.m. and
again at 1:11 a.m. and explained that the 1:00 a.m. time entry was accidental
and “incorrect” because the nurse was “not even at work” at that time.
Further, records “that document the time and amount of each dose of
narcotic, opioid or other types of pain medication were dispensed” reflected
3 Plaintiffs alleged that Holloway suffered respiratory failure on
September 4 “in one of several possible ways” and subsequently “whittled”
the possible causes “down to one, namely that she died from an overdose of
opiate medication on the morning of September the 4th, 2018.”
4 Further undesignated statutory references are to the Code of Civil
Procedure.
5 Alta Bates also sought summary adjudication of several issues,
including lack of vicarious liability for the conduct of the physicians,
Holloway’s consent to treatment, and lack of evidence of a conspiracy.
6
that the hydromorphone was disbursed around 5:09 p.m. on September 4,
when the nurse was working.
Payam Nahid, M.D., Alta Bates’s expert regarding “intensivists,”
opined that there was “no evidence of an overdose.” Dr. Nahid noted the
toxicology screen taken at 2:05 a.m. on September 7, 2018, “was negative for
opiates” and “would have shown evidence of an opiate overdose for up to a 72
hour period”; it therefore “demonstrate[d] [Holloway] did not suffer an opioid
overdose on September 6, 2018.” Additionally, Dr. Nahid opined that
Holloway “did not suffer any sort of brain injury or other event on September
4, 2018[, or] September 5, 2018,” because “medical records demonstrate
[Holloway] was alert, responsive and oriented” and “interacting with care
providers” on those dates. Benny Gavi, M.D., Alta Bates’s expert regarding
care rendered by its “hospitalists,” similarly “saw no evidence that proves,
more likely than not, that [Holloway] died from an opioid overdose. The
urine toxicology screen [conducted] on September 7, 2020, was negative for
opioids.”
Plaintiffs served two separate ex parte applications—on February 29
and April 5, 2024—“to continue the hearing date on all [pending] motions for
summary judgment.” The court denied the first application but issued a
scheduling order on April 18, setting Alta Bates’s motion for summary
judgment for hearing on May 9, 2024, with plaintiffs’ opposition due April 25
and Alta Bates’s reply brief due May 3.
Between May 1 and 2, 2024, plaintiffs served an “untimely” opposition
to Alta Bates’s summary judgment motion that did not include any objections
to the evidence submitted by Alta Bates in support of its motion. The
opposition included as exhibits Holloway’s cell phone records, which reflect
Holloway’s last outgoing call was September 4, 2018, at 12:51 p.m., and
7
supplemental medical records from 2017 that noted Holloway exhibited “drug
seeking behavior,” with respect to pain medication.
Plaintiffs also offered the declarations of John Pappas, M.D., D.D.S., a
dentist and oral surgeon, and Jason Somerby, a registered nurse. In his
declaration, Dr. Pappas focused on several “discrepancies” in Holloway’s
dental records. “Presum[ing] that time is correct” as stamped on the second
panoramic X-ray represented to have been taken at Dr. Nam’s office on
September 4, Dr. Pappas concluded “that the dental work reported in the
Nam dental records is unlikely to have been done” because the X-ray showed
“[no] change in the structure of the teeth” from the earlier X-ray taken at
Alta Bates. Dr. Pappas opined that Holloway’s dental care fell below the
appropriate standard of care but did not state that any act or omission on the
part of Alta Bates caused Holloway’s death.
In his declaration submitted in opposition, Somerby opined that the
treating nurses did not meet their standard of care, stating that the Alta
Bates nurses failed “to discover that Ms. Holloway was an opiate addict and
to take the steps required by the standard of care to protect her.” Somerby
also opined that Holloway’s medical records reflected an “eleven-minute
interval between doses of [Dilaudid]” on September 4, which “constituted a
material overdose of the medication.” He rejected as “patently false” Alta
Bates’s explanation that the 1:00 a.m. time entry was “incorrect,” because if
the nurse had “inadvertently put 1:00AM instead of 5:17PM on 9/4/18 for an
administration by injection of 1 mg of Dilaudid, EPIC [the electronic medical
records computer system] would have alerted her that she was violating the
prescription parameter.” As to the cause of death, Somerby “reasonably
infer[red] that Ms. Holloway, within medical probability, suffered an adverse
outcome as a result of being overdosed with Dilaudid medication.”
8
On May 3, Alta Bates timely filed a reply brief, objecting to plaintiffs’
declarations—including a specific objection to Somerby’s opinion on
causation—and argued that plaintiffs failed to offer any admissible evidence
of the cause of Holloway’s death.
On its own motion, the court twice continued the scheduled May 6
hearing on Alta Bates’s motion for summary judgment. As part of the second
continuance order, the court noted that plaintiffs failed to “adequately
authenticate[ ]” certain records and that plaintiffs’ experts failed to identify
the deposition testimony they relied upon in coming to their conclusions. The
court granted leave for plaintiffs to file supplemental declarations and
granted Alta Bates leave to file any objections thereto.
On July 8, 2024, plaintiffs served a supplemental declaration of
counsel, which the court considered “even though it was late and it is unclear
whether it was properly filed.” Although Dr. Pappas and Somerby did not file
supplemental declarations, counsel’s declaration “summarize[d]” Zheng’s
deposition testimony concerning the incorrect 1:00 a.m. time entry for the
injection of Dilaudid. On July 11, Alta Bates filed a supplemental brief and
objections to plaintiffs’ counsel’s supplemental declaration.
“Two days before the hearing” on Alta Bates’s motion for summary
judgment,6 plaintiffs filed their third ex parte application for a continuance.
Plaintiffs sought leave to submit new evidence in support of their opposition,
namely, a declaration of Louis Caplan, M.D., who plaintiffs represented was
“traveling out-of-state, spending time with his many children and
grandchildren after his retirement a few months ago.” The court denied the
6 By this time, the court had again continued the hearing on Alta
Bates’s motion for summary judgment, which was now set for September 26,
2024.
9
motion, finding plaintiffs’ reason for delay in obtaining Dr. Caplan’s
declaration “not credible.”
After hearing argument on the motion and taking the matter under
submission, the court granted summary judgment in favor of Alta Bates on
September 30, 2024. The court found plaintiffs failed to offer admissible
evidence of the cause of Holloway’s death and therefore did not raise a triable
issue of fact as to causation. In doing so, the court sustained certain
objections to Somerby’s declaration, finding Somerby’s opinion that Holloway
“suffered an adverse outcome as a result of being overdosed with Dilaudid
medication” lacked foundation and was “an improper purported expert
opinion.” The court entered judgment in favor of Alta Bates on October 11,
2024.
On September 9, 2024, plaintiffs filed a notice of appeal from summary
judgment in favor of defendants Dr. Nam and Dr. Blake. On October 28,
2024, plaintiffs filed an amended notice of appeal that included the judgment
in favor of Alta Bates and dismissal of several other defendants. Currently,
“Plaintiffs appeal from the grant of summary judgment to [Alta Bates] only,”
and all parties except for Alta Bates have since been dismissed.
DISCUSSION
The purpose of summary judgment is to allow courts to “cut through
the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To prevail on a summary
judgment motion, the defendant must show that one or more of the elements
of each cause of action cannot be established or that there is a complete
defense to the claims. (§ 437c, subd. (p)(2).) If the defendant makes such a
10
showing, then the burden shifts to the plaintiff to raise a triable issue of
material fact. (Ibid.)
We review orders granting summary judgment de novo. (Applegate v.
Carrington Foreclosure Services, LLC (2025) 112 Cal.App.5th 356, 364.) We consider both parties’ evidence, except that to which an objection has been sustained, viewing it “in the light most favorable to plaintiffs as the losing parties, liberally construing their evidentiary submission while strictly scrutinizing [the defendant’s] showing.” (McCurry v. Singh (2024)104 Cal.App.5th 1170
, 1175.)
On appeal, we “ ‘apply the same three-step analysis as the trial court.’ ”
(Zaragoza v. Adam (2025) 109 Cal.App.5th 113, 118 (Zaragoza).) “ ‘ “First,
we identify the issues framed by the pleadings. Next, we determine whether
the moving party has established facts justifying judgment in its favor.
Finally, if the moving party has carried its initial burden, we decide whether
the opposing party has demonstrated the existence of a triable, material fact
issue.” ’ ” (Id. at p. 118.)
First, defining the issues based on the pleadings, the operative sixth
amended complaint asserted a claim for medical negligence.7 Plaintiffs
alleged that Holloway’s “respiratory failure occurred not on 9/6 as stated in
[Holloway’s] medical records, but on 9/4/18” due to “one of several possible”
7 Before the hearing on Alta Bates’s motion for summary judgment, the
trial court issued a tentative ruling noting that plaintiffs “fail[ed] to address”
their second cause of action for battery, which the court “construed . . . as
conceding Alta Bates’ position. Plaintiffs did not contest that aspect of the
tentative ruling at the hearing.” In this appeal, plaintiffs do not present any
argument regarding their battery claim and therefore forfeit any related
challenge to the court’s ruling. (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52 [“When legal argument with citation to authority is
not furnished on a particular point, we may treat the point as forfeited and
pass it without consideration”].)
11
causes, namely, being “accidentally over medicated with Dilaudid and
suffer[ing] respiratory depression . . . which led to respiratory failure and
ensuing brain injury.” The elements of a claim for medical negligence are a
duty of care, a breach of that duty, a causal connection between the breach
and resulting harm, and damages. (Simmons v. W. Covina Medical Clinic
(1989) 212 Cal.App.3d 696, 701–702.)
Under the second step, we consider whether Alta Bates met its moving
burden of showing “that one or more elements of the cause of action . . .
cannot be established.” (Zaragoza, supra, 109 Cal.App.5th at p. 118; § 437c,
subd. (p)(2).) Where plaintiffs allege medical malpractice based on
professional negligence, “expert testimony is required to establish . . .
whether the defendant’s conduct proximately caused the plaintiff’s injuries
within a reasonable medical probability.” (Zaragoza, at pp. 118–119.)
Based on our independent review of the evidence, we conclude the Alta
Bates’s expert declarations satisfied its moving burden of showing that Alta
Bates did not cause Holloway’s injuries. Both experts, Dr. Gavi and
Dr. Nahid, opined that Alta Bates did not cause Holloway’s death, specifically
concluding that Holloway’s demise was not caused by an opiate overdose.
Dr. Nahid expressly declared that Holloway did not die on September 4, as
plaintiffs alleged, or anytime “[p]rior to September 6, 2018.” Alta Bates’s
expert declarations set forth the materials each expert reviewed, including
Holloway’s relevant medical background, and supported their conclusions
with reference to applicable test results and medical records. Recognizing
“ ‘[t]he opinion of any expert “is only as good as the facts and reasons on
which it is based,” ’ ” here, Alta Bates’s experts provided sufficient factual
detail and reasoned explanation for their opinions to shift the burden to
plaintiffs. (Zaragoza, supra, 109 Cal.App.5th at pp. 119, 121.)
12
In the context of the three-step analysis, plaintiffs argue that their
evidence of fraudulent medical records undermines Alta Bates’s expert
opinions and precludes the court from “rely[ing] on expert opinion testimony
in granting summary judgment when the expert stated explicitly that he
relied on such inaccurate records.” We do not agree. Although Dr. Pappas
and Somerby identified discrepancies in Holloway’s medical records,
plaintiffs’ evidence falls far short of rendering Alta Bates’s expert opinions
inadmissible or otherwise insufficient to carry the moving burden. Indeed,
plaintiffs did not object to any of Alta Bates’s evidence introduced before the
trial court, thereby waiving any objections to admissibility on appeal.
(§ 437c, subd. (b)(5) [“Evidentiary objections not made . . . shall be deemed
waived”].) And, while admissibility “is not dispositive” of whether a
declaration is sufficient to carry the moving burden, even under a liberal
construction, plaintiffs’ expert declarations offer no admissible conflicting or
differing opinion on causation; merely pointing out “contradictions” in the
moving party’s evidence does not warrant a jury trial. (Zaragoza, supra,
109 Cal.App.5th at p. 119; see also Morales-Simental v. Genentech, Inc.
(2017) 16 Cal.App.5th 445, 460–461 [rejecting plaintiffs’ argument “that
contradictions in the declarations and deposition testimony . . . raise
credibility questions for the jury”].)
Under the third and final step, we consider whether plaintiffs raised a
triable issue of material fact that would warrant denial of the motion and
determine they did not. (Zaragoza, supra, 109 Cal.App.5th at p. 118.)
“Material facts are those that relate to the issues in the case as framed by the
pleadings.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
860.) Plaintiffs’ negligence claim is based on the theory that the seizure
Halloway suffered on September 6, 2024, did not cause her death; rather her
13
death was caused by “an overdose of opiate medication” after nurses
improperly administered two Dilaudid injections in rapid succession at
1:00 a.m. and 1:11 a.m. on September 4. But the only expert opinion
plaintiffs offered as to causation was from Somerby, who, after his review of
the medical records, concluded that Holloway “suffered an adverse outcome
as a result of being overdosed with Dilaudid medication” because, “[a]bsent a
correction” of the MAR showing a 1:00 a.m. injection on September 4, “I have
no alternative but to assume it is correct and that Ms. Holloway was
overdosed with Dilaudid.” However, this “assumption” and Somerby’s
subsequent “reasonable inference” that Holloway, “within medical
probability, suffered an adverse outcome as a result of being overdosed with
Dilaudid medication” was based on Somerby’s stated familiarity with Alta
Bates’s medical record system,8 a professed expertise to which Alta Bates’s
objection was “SUSTAINED as lacking foundation, and as an improper
purported expert opinion, as to how the EPIC program used by Alta Bates
operated during the relevant timeframe at issue in this case.”
On appeal, plaintiffs do not cogently argue the objection was
erroneously sustained or even provide the applicable standard of review for
such rulings, thereby forfeiting any challenge to the exclusion of Somerby’s
opinion. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948
[failure “to articulate the standard of review on appeal” is “in and of itself a
potentially fatal omission”].) In any event, Somerby’s opinion failed to raise a
8 Somerby declared: “I am very familiar with the EPIC electronic
medical record system used at Sutter Hospitals since I used it myself and I
use an almost identical build of the EPIC system at Kaiser-Permanente.
There are no differences between the systems that I, as a nurse, am aware of
that would change my opinion of the situation around this medication
administration since both organizations use the EPIC system.”
14
triable issue of material fact. Somerby did not provide any information about
his medical training or education generally or his experience with Dilaudid
specifically; and Somerby’s bare conclusion that Holloway suffered an
“adverse outcome” fails to even state the specific harm (e.g., unconsciousness,
seizure, respiratory failure), let alone provide any explanation about how the
overdose caused that “outcome.” (See Nardizzi v. Harbor Chrysler Plymouth
Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415 [a plaintiff cannot manufacture
a triable issue through “ ‘self-serving’ ” expert declarations “ ‘devoid of any
basis, explanation, or reasoning’ ”].) Instead, Somerby’s opinion on causation
was expressly based on his rejection of Zheng’s testimony as “false based on
my daily use and experience with the EPIC software,” proffered expertise to
which Alta Bates’s objection was sustained. With no evidentiary support
remaining for Somerby’s unfounded opinion, Alta Bates’s motion for
summary judgment was properly granted.
As an additional matter, plaintiffs’ appellate briefing cites declarations
by Dr. Caplan and Dr. Bryan Young, that were filed by plaintiffs in
opposition to a subsequent motion for summary judgment unrelated to the
matter on appeal. Plaintiffs contend that “they may utilize such additional
declaration[s] to show that summary judgment should not have been
granted” because the trial court denied their continuance request to secure
Dr. Caplan’s declaration. We reject plaintiffs’ contention for several reasons.
First, plaintiffs do not contest the denial of the continuance directly or
set forth the standard of review, rather their argument is contained in two
footnotes, which forfeits the issue on appeal. (Holden v. City of San Diego
(2019) 43 Cal.App.5th 404, 419–420 [“An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument” on appeal]; Ewald v. Nationstar Mortgage, LLC, supra,13 Cal.App.5th at 15
p. 948.) Second, plaintiffs do not appear to have ever requested leave to file the Young declaration in the trial court, thus they cannot tether it to their Caplan-related continuance request in an effort to rely upon it on appeal. (American Continental Ins. Co. v. C & Z Timber Co. (1987)195 Cal.App.3d 1271, 1281
[“in reviewing a summary judgment, the appellate court must
consider only those facts before the trial court . . . . [Citation.] Thus, possible
theories that were not fully developed or factually presented to the trial court
cannot create a ‘triable issue’ on appeal”].) As such, contrary to plaintiffs’
assertion, these improperly cited declarations do not “show that summary
judgment should not have been granted to [Alta Bates] and would not have
been if they had been allowed to file an additional declaration.” Plaintiffs’
attempt to challenge the trial court’s exclusion of late evidence and denial of
a related continuance has been forfeited.
DISPOSITION
The judgment is affirmed. Sutter Bay Hospitals (Alta Bates) may
recover its costs of appeal.
16
DESAUTELS, J.
We concur:
STEWART, P. J.
MILLER, J.
J.P., etc., et al. v. Sutter Bay Hospitals et al. (A171454)
17