Stremfel v. Kalantar CA2/4 ( 2020 )

Filed 12/22/20 Stremfel v. Kalantar CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
JORDAN STREMFEL, B300053
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC657433)
v.
NADER KALANTAR,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Affirmed.
Holstein, Taylor and Unitt and Brian C. Unitt; Law
Offices of Patricia A. Law and Patricia A. Law, for Plaintiff
and Appellant.
Law & Brandmeyer, and Bryan C. Misshore; Schmid &
Voiles and Denise H. Greer, for Defendant and Respondent.
_______________________________________________
INTRODUCTION
Respondent Nader Kalantar, M.D., performed a
tonsillectomy on appellant Jordan Stremfel, followed by
emergency surgery to correct a post-tonsillectomy
hemorrhage. Anesthesiologist Phillip K. Lau, M.D.,
participated in the emergency procedure, during which Dr.
Kalantar performed a tracheostomy at Dr. Lau’s request.
Stremfel sued Dr. Kalantar and Dr. Lau for medical
negligence. More than a year later, Dr. Kalantar moved for
summary judgment. Nine months later, without obtaining
Dr. Lau’s testimony or even noticing his deposition,
Stremfel’s counsel filed a notice of non-opposition to Dr.
Kalantar’s summary judgment motion, which the trial court
granted. Only then did Stremfel’s counsel notice and take
Dr. Lau’s deposition. Stremfel then filed a motion for a new
trial on the ground of newly discovered evidence, viz., Dr.
Lau’s deposition testimony (along with an expert declaration
relying on it). The motion was denied as a matter of law
because the court did not rule on it within 75 days after Dr.
Kalantar served Stremfel with notice of entry of judgment.
(See Code Civ. Proc., § 660, subd. (c).)
On Stremfel’s appeal from the judgment in Dr.
Kalantar’s favor, he contends the trial court erred by
denying his motion for new trial. The parties agree we may
2
review the merits of the motion as if it had been denied on
the merits. (See In re Marriage of Liu (1987) 197 Cal.App.3d
143, 152, citing Estate of Shepard (1963) 221 Cal.App.2d 70,
73; Nishihama v. City and County of San Francisco (2001)
93 Cal.App.4th 298, 301, 305-306.)1
We find Stremfel’s motion for new trial to be without
merit, as his counsel’s unreasonable failure to depose Dr.
Lau before declining to oppose Dr. Kalantar’s motion for
summary judgment prevented Stremfel from making the
required showing of reasonable diligence. Accordingly, we
affirm.
FACTUAL BACKGROUND
A. Stremfel’s Medical Treatment and Complaint
On May 10, 2016, Dr. Kalantar performed a
tonsillectomy on Stremfel. On May 18, 2016, Stremfel began
spitting up blood and was transported by ambulance to
Huntington Memorial Hospital. An otolaryngologist
1 As Dr. Kalantar observes, courts have criticized the rule
allowing appellate review of the merits of a new trial motion
denied by operation of law (at least as applied in the face of the
appellant’s responsibility for the absence of a timely decision on
the motion). (See In re Marriage of Liu, supra, 197 Cal.App.3d at
153, fn.3; Estate of Shepard, supra, 221 Cal.App.2d at 73-75.)
But Dr. Kalantar neither asks us to depart from the rule, nor
cites any authority departing from it. (See Estate of Shepard,
supra, at 75 [“since the rule is so well established, we feel bound
to follow it”]; In re Marriage of Liu, supra, at 153, fn.3 [same,
quoting Estate of Shepard].)
3
diagnosed him with “severe posttonsillectomy hemorrhage,
which can be life threatening,” but observed that his airway
was then secure and unobstructed. With Stremfel’s consent,
the otolaryngologist arranged for Dr. Kalantar, who was also
on staff at the hospital, to conduct surgery to correct the
hemorrhage.
In his operative report concerning the May 18, 2016
emergency procedure, Dr. Kalantar identified Dr. Lau as the
anesthesiologist. Dr. Kalantar wrote, “The patient had
aspirated a significant amount of blood and clot products,
which became evident as [Dr. Lau] tried to intubate the
patient at the start of the procedure and was unable to do so
or pass a tube as a result. Desaturation [of Stremfel’s
oxygenation] ensued, and I placed an emergency surgical
airway (tracheostomy).” Dr. Kalantar described the
successful completion of the tracheostomy and the
hemorrhage surgery. He did not state he received assistance
from any other surgeon, and he did not mention Thuc Bach,
M.D. A “Perioperative/Procedural Record” from the hospital
indicated that Dr. Bach performed the role of “Surgeon
Assist” for a portion of the emergency procedure, but did not
elaborate.
In a June 29, 2016 record of Stremfel’s follow-up
treatment, Dr. Kalantar observed that Stremfel’s recovery
had been “complicated” and marked by “atypical tremor type
symptoms,” and that Stremfel was “on disability from work
due to the movement disorder.”
4
On April 24, 2017, Stremfel filed a medical negligence
complaint against Dr. Kalantar, a number of Doe defendants,
and other defendants irrelevant to this appeal. On March 23,
2018, he filed an amendment naming Dr. Lau as an
additional defendant (replacing a Doe defendant).
B. Dr. Kalantar’s Motion for Summary Judgment
Over a year after the filing of the complaint (on May 4,
2018), Dr. Kalantar moved for summary judgment. He
submitted expert declarations from an otolaryngologist and
an anesthesiologist, along with various records concerning
Stremfel’s treatment, which the experts had reviewed. Both
experts opined that Dr. Kalantar had complied with the
standard of care in treating Stremfel. The anesthesiologist
additionally opined that none of Dr. Kalantar’s actions or
omissions caused Stremfel’s alleged injuries. These opinions
formed the basis of Dr. Kalantar’s motion for summary
judgment. A key factual premise for his motion was that
Stremfel “never stopped breathing” during the May 18
emergency procedure and “only experienced nominal
oxygenation desaturation.”
The hearing on Dr. Kalantar’s motion was initially
scheduled for July 25, 2018, but the parties agreed to
continue it to February 27, 2019, for the purpose of
conducting further discovery, including Dr. Kalantar’s
deposition.
C. Stremfel’s Pre-Opposition-Deadline Discovery
5
On September 11, 2018, Dr. Lau answered the
complaint. Three months later (on December 11, 2018),
Stremfel served interrogatories on Dr. Lau.
On December 19, 2018, Stremfel deposed Dr. Kalantar.
Dr. Kalantar testified that Stremfel experienced a period of
“low oxygen” during the May 18 emergency procedure, but
Stremfel’s oxygenation level was “never zero.” He further
testified that he performed the tracheostomy, at Dr. Lau’s
request, “[a]s soon as it became clear that there was an issue
with oxygen desaturation . . . .” He did not recall “to what
degree [Stremfel] desaturated” (i.e., what Stremfel’s lowest
oxygenation level was). Nor did he recall, even as an
estimate, the time period during which Stremfel’s
oxygenation level was lowered. Stremfel’s counsel asked Dr.
Kalantar several questions about Dr. Lau’s conduct, some of
which Dr. Kalantar could not answer.2 Stremfel’s counsel
2 “Q. . . . [D]o you recall Dr. Lau asking you any questions?
Do you recall him sharing with you any concerns that he had? [¶]
A. I can’t remember.”
“Q. Do you recall whether there was anything that was
done by Dr. Lau which you understood to be particular to the fact
that this patient had had a tonsil bleed in terms of his
introduction of the ET tube? In other words, did he say, ‘I’m
going to come at it from this angle,’ or ‘I’m going to use a smaller
tube’? [¶] Was there something that you recognized he was doing
to deal with the fact that there had been a tonsillar bleed? [¶] A.
Not -- I don’t -- I don’t know. I don’t remember.”
“Q. Did you and Dr. Lau have any discussion about the
events that had occurred with the desaturation at the conclusion
(Fn. is continued on the next page.)
6
also asked “Who is Dr. Bach[,]” to which Dr. Kalantar
responded, “I don’t know. I do recall that we had called
essentially for anybody available in the OR to come assist as
soon as that airway issue had started . . . . [¶] I’m not sure
who Dr. Bach is, but I do remember somebody was assisting
me, just holding and sort of retracting, and that must be who
that was.”
At the end of Dr. Kalantar’s December 19, 2018
deposition, Stremfel’s counsel asked Dr. Lau’s counsel to
provide dates in January for Dr. Lau’s deposition. Dr. Lau’s
counsel did not do so. In a letter sent nearly a month later
(on January 14, 2019), Stremfel’s counsel requested proposed
of this surgery? [¶] A. Yes. [¶] Q. Okay. And what was the
substance of that discussion? [¶] A. . . . [W]e were just
discussing, you know, how the airway looked and -- but that’s
pretty much it, just what the situation was in the airway and --
and what we can do to clear the airway.”
“Q. . . . Did you observe Dr. Lau do any type of pre-ET tube
placement examination of the patient? [¶] A. I personally didn’t
observe it.”
“Q. . . [D]o you recall what Dr. Lau was saying to you as he
was trying to place the ET tube? Any information he was sharing
with you? [¶] A. He wasn’t sharing much information. I don’t --
I don’t really recall him saying much at all.”
“Q. Did [Dr. Lau] tell you what he thought was going on or
why he wanted a surgical airway, or was that something that was
just understood? [¶] A. Not necessarily understood either way.
But he didn’t -- he didn’t tell me. He just told me he needed a
surgical airway. [¶] Q. Okay. And did he withdraw the ET tube
at that point in time? [¶] A. I don’t -- I can’t remember.”
7
deposition dates “good for” Dr. Lau and his counsel, without
specifying any preferred time frame. She wrote that her
office would follow up if Dr. Lau’s counsel did not respond “in
the next couple weeks.” The record does not disclose the
response, if any, of Dr. Lau’s counsel.
D. Unopposed Entry of Summary Judgment, and
Notice Thereof
On February 13, 2019 (the deadline for Stremfel’s
opposition to the summary judgment motion), Stremfel filed
a notice of non-opposition to Dr. Kalantar’s motion. On
February 27, 2019, the trial court issued a minute order
without a hearing, concluding that Dr. Kalantar’s expert
declarations satisfied his initial burden as a summary
judgment movant, and that the motion should be granted
“[i]n light of the lack of opposition (and the affirmative notice
of non-opposition) . . . .” On May 21, 2019, the court entered
judgment in Dr. Kalantar’s favor.
On May 24, 2019, Dr. Kalantar served notice of entry
of judgment on Stremfel. This triggered a deadline of
August 7, 2019, for the trial court to rule on Stremfel’s
subsequently filed motion for new trial. (See Code Civ. Proc.,
§ 660, subd. (c) [“[T]he power of the court to rule on a motion
for a new trial shall expire . . . 75 days after service on the
moving party by any party of written notice of entry of
judgment . . . . If the motion is not determined within the
75-day period . . . the effect shall be a denial of the motion
without further order of the court”].)
8
E. Dr. Lau’s Deposition
On April 5, 2019 (nearly two months after the filing of
Stremfel’s non-opposition), Stremfel’s counsel “blind
[n]oticed” Dr. Lau’s deposition. Dr. Lau objected to the date
selected by Stremfel’s counsel, and the parties eventually
agreed to proceed with the deposition on June 7, 2019. In
the interim (on May 2, 2019), Dr. Lau served his responses
to Stremfel’s interrogatories.
During his June 7, 2019 deposition, Dr. Lau testified
that Stremfel had zero percent oxygenation for “maybe three
minutes.” He acknowledged that the oxygenation level was
unclear on the anesthesia record then in Stremfel’s counsel’s
possession.3 He also testified that Dr. Kalantar delayed the
tracheostomy. Specifically, he testified that initially, his
“repeated requests of Dr. Kalantar to perform the trach were
not met by any action,” as Dr. Kalantar merely responded,
“‘Are you sure? Are you sure?’” About one or two minutes
after Dr. Lau first asked Dr. Kalantar to perform the
tracheostomy, Dr. Lau asked a nurse to bring a different
surgeon to perform it. Within two minutes, Dr. Bach arrived.
Dr. Lau believed that Dr. Kalantar “had started before Dr.
3 In response to Dr. Lau’s testimony, Stremfel’s counsel
requested and received from Huntington Memorial Hospital a
differently formatted version of the anesthesia record, which
corroborated Dr. Lau’s testimony that there was a period of zero
percent oxygenation.
9
Bach came into the room,” but testified that both Dr.
Kalantar and Dr. Bach performed the tracheostomy.
F. Stremfel’s Motion for New Trial
On June 7, 2019 (within 15 days of the May 24, 2019
service of notice of entry of judgment), Stremfel filed a notice
of intention to move for a new trial on the ground of newly
discovered evidence, viz., Dr. Lau’s deposition testimony.
(See Code Civ. Proc., § 659, subds. (a)-(b) [party intending to
move for new trial shall, within 15 days of service of notice of
entry of judgment, file “a notice of his intention to move for a
new trial,” which “shall be deemed to be a motion for a new
trial on all the grounds stated in the notice”].) Stremfel filed
his brief and supporting documents 10 days later, on June 17,
2019. (See Code Civ. Proc., § 659a [“Within 10 days of filing
the notice, the moving party shall serve upon all other
parties and file any brief and accompanying documents”].)
Stremfel submitted, inter alia, a declaration from
otolaryngologist Abie Mendelsohn, M.D. Dr. Mendelsohn
declared that before summary judgment was entered, he had
reviewed the medical records and the testimony from
Stremfel’s and Dr. Kalantar’s depositions, and had informed
Stremfel’s counsel that he could not endorse the negligence
claim against Dr. Kalantar because nothing in those
materials “evidenced any gross deviation from the standard
of care” on Dr. Kalantar’s part. He further declared that he
had recently reviewed Dr. Lau’s testimony, and opined that
if Dr. Lau’s testimony was accurate, Dr. Kalantar breached
10
the standard of care in a manner resulting in poor
oxygenation and injury to Stremfel’s brain.
In her motion brief, Stremfel’s counsel argued, inter
alia, that she had been reasonably diligent in producing Dr.
Lau’s deposition testimony, relying on a timeline of the
litigation and on the asserted absence of “reason to suspect
that Dr. Kalantar lied in his discovery and his deposition,
[and] that he falsified the medical records . . . .” In
opposition, Dr. Kalantar argued, inter alia, that reasonably
diligent counsel would have deposed Dr. Lau much earlier,
commenting, “Surely, the most basic discovery includes the
testimony of other defendants in the case, especially [when
one such defendant is] a witness to the incident in question.”
In reply, Stremfel’s counsel argued, inter alia, “The nature
and materiality of [Dr. Lau’s] testimony could not have been
anticipated.”
G. Hearing, Continuance, and Denial by
Operation of Law
On July 16, 2019, the trial court held a hearing on
Stremfel’s motion for new trial. At the outset of the hearing,
the court confirmed counsel had reviewed its tentative order
denying the motion on the ground that Stremfel had failed to
file a timely notice of intention. Stremfel’s counsel provided
the court with a conformed copy of her timely notice, and
said, “I wanted to clear that up with the court and then,
hopefully, have the court set us a new date so that we can
come back and have this heard on its merits.” The court
11
asked Dr. Kalantar’s counsel if he agreed, and he responded,
“It appears to me that the papers were filed timely. And if
the court has not had an opportunity to . . . review the
matter on the merits, then perhaps [Stremfel’s counsel’s]
suggestion is well-taken.” The court proposed July 30, 2019,
as the date for the continued hearing. Stremfel’s counsel
responded that she was required to appear for federal grand
jury service on that date. The court then suggested August
13, 2019, and both counsel agreed to that date -- failing to
mention the statutory deadline of August 7, 2019, for a
ruling on the motion.
Upon the expiration of the August 7, 2019 deadline, the
court lost jurisdiction to rule on the motion, which was
denied by operation of law. (See Code Civ. Proc., § 660, subd.
(c).) At the August 13, 2019 hearing, the court and both
counsel agreed the court no longer had jurisdiction to rule on
the motion. The court issued a minute order stating the
same.
Stremfel timely appealed from the judgment.
DISCUSSION
Stremfel contends the trial court erred by denying his
motion for new trial, which he made on the ground that Dr.
Lau’s deposition testimony was newly discovered, material
evidence which Stremfel could not, with reasonable diligence,
have produced in opposition to Dr. Kalantar’s motion for
summary judgment.
A. Principles
12
A party may move for a new trial on the ground of
“[n]ewly discovered evidence, material for the party making
the application, which he could not, with reasonable
diligence, have discovered and produced at the trial.” (Code
Civ. Proc., § 657, subd. (4).) “Generally, a party seeking a
new trial on this basis must show that ‘(1) the evidence is
newly discovered; (2) he or she exercised reasonable
diligence in discovering and producing it; and (3) it is
material . . . .’” (See Doe v. United Air Lines, Inc. (2008) 160
Cal.App.4th 1500, 1506 (United Air Lines).) “Because of the
possibility that the moving party may have been guilty of
neglect, this ground is looked upon with ‘distrust and
disfavor,’ and a strong showing of the essential requirements
must be made.” (8 Witkin, Cal. Procedure (5th ed. 2020)
Attack on Judgment in Trial Court, § 31.) In particular,
“[t]he cases strongly emphasize the requirement of diligence,
at times referring to ‘a high degree’ or ‘a strict showing.’
Lack of diligence is therefore a frequent reason for denial of
the motion and an occasional reason for reversal of an order
granting it.” (Id., § 34; see also Wegner et al., Cal. Practice
Guide: Civil Trials & Evidence (The Rutter Group 2020)
¶ 18:153.4 [“Lack of diligence is the most common reason for
denying the motion”].)
B. Analysis
We find Stremfel’s motion for new trial to be without
merit, as his counsel’s unreasonable failure to depose Dr.
Lau before declining to oppose Dr. Kalantar’s motion for
13
summary judgment prevented Stremfel from making the
required showing of reasonable diligence. Dr. Lau was not
only a codefendant, but also a percipient witness to Dr.
Kalantar’s conduct during the May 18 emergency procedure.
Any competent plaintiff’s counsel would have deposed Dr.
Lau. (See 2 McDonald, Cal. Medical Malpractice Law &
Practice (2020 ed.) § 15:1 [“Attorneys who regularly engage
in malpractice litigation assume that the deposition of each
principal player eventually will have to occur. . . . The
deposition[] [transcript], containing the witness’[s] detailed
responses left largely unvarnished by the influence of the
deponent’s attorney, . . . can often become the single most
important document in the action”].) Though Stremfel’s
counsel eventually did depose Dr. Lau, her delay was
unreasonable. At the time Dr. Kalantar filed his motion,
Stremfel’s complaint had been pending for over a year. An
additional nine months passed between the filing of the
motion and Stremfel’s February 13, 2019 opposition deadline.
Thus, with only modest effort, Stremfel’s counsel could have
deposed Dr. Lau in time to consider his testimony in
deciding whether to oppose Dr. Kalantar’s motion for
summary judgment. Her failure to make that modest effort
prevented Stremfel from showing the reasonable diligence
necessary to establish the merits of his motion for new trial.4
4 Though Stremfel asserts that “Dr. Lau and his counsel did
not make his deposition easily obtainable,” the record reveals
nothing that Dr. Lau did to obstruct the taking of his deposition.
Stremfel merely faults Dr. Lau for failing to respond to Stremfel’s
(Fn. is continued on the next page.)
14
(See United Air Lines, supra, 160 Cal.App.4th at 1508-1509
[trial court erred by finding new-trial movant had been
reasonably diligent in producing expert’s declaration after
summary judgment was entered, where movant’s counsel
retained expert before summary judgment hearing but
neither moved for continuance nor asserted facts
demonstrating inability to obtain declaration before
hearing]; cf. New York Times Co. v. Superior Court (2005)
counsel’s “attempted courtesy” in requesting convenient
deposition dates. But nothing prevented Stremfel’s counsel from
noticing Dr. Lau’s deposition for a unilaterally selected date, as
she eventually did. Had she done so earlier, she could have
protected her client’s rights and still extended Dr. Lau the
courtesy of rescheduling his deposition to a mutually agreed date.
(See Dunne on Depositions in California (2019) § 3:9 [“A[]
courtesy occasionally employed is to unilaterally and formally
notice the deposition but accompany the notice with a cover letter
that requests all parties to contact the secretary of the noticing
party if a different time for the deposition is desired”].)
Dr. Kalantar argues that in response to Dr. Lau’s silence
regarding deposition dates, Stremfel’s counsel could have moved
for and obtained a continuance of the summary judgment hearing
under Code of Civil Procedure section 437c, subdivision (h), or the
trial court’s discretionary powers. Stremfel disputes whether the
court would have granted a continuance. We need not resolve
this dispute. As Dr. Kalantar observes, the hearing had already
been continued from July to February, by the parties’ agreement,
in order to allow them to conduct further discovery. Even
without a second continuance, Stremfel’s counsel had ample time
to depose Dr. Lau before the summary judgment opposition
deadline.
15
135 Cal.App.4th 206, 212-215 (New York Times) [trial court
abused its discretion by granting appellant’s motion for
reconsideration based on deposition testimony produced
after summary judgment was entered, where appellant’s
failure to produce the testimony earlier resulted from its
counsel’s “decision . . . not to collect evidence he thought
unnecessary” at the time].)5
We reject Stremfel’s argument that at the time his
counsel declined to oppose summary judgment, she was
excusably ignorant of the likely materiality of Dr. Lau’s
testimony. Stremfel’s proffered excuse is that Dr. Kalantar
and Dr. Lau prevented his counsel from foreseeing the
materiality of Dr. Lau’s deposition testimony. He argues Dr.
Kalantar obscured the materiality of Dr. Lau’s testimony by
misrepresenting the emergency procedure in his operative
report and deposition testimony (by failing to disclose the
period of zero oxygenation and the delay in the tracheostomy,
which prompted Dr. Lau to arrange for Dr. Bach’s
assistance). Similarly, Stremfel argues Dr. Lau obscured the
materiality of his own testimony by failing to disclose the
5 In New York Times, we observed that the appellant’s
burden on its motion for reconsideration was “comparable to that
of a party seeking a new trial on the ground of newly discovered
evidence: the information must be such that the moving party
could not, with reasonable diligence, have discovered or produced
it at the trial.” (New York Times, supra, 135 Cal.App.4th at 212-
213.)
16
substance of his testimony in his responses to Stremfel’s
interrogatories. These arguments fail for two reasons.
First, the record belies Stremfel’s implication that his
counsel was ignorant of the likely materiality of Dr. Lau’s
testimony. By the date of Dr. Kalantar’s December 19, 2018
deposition (nearly two months before the summary judgment
opposition deadline), Stremfel’s counsel evidently had
determined that Dr. Lau was a material witness to the May
18 emergency procedure, as shown by the facts that (1) she
had named Dr. Lau as a codefendant about nine months
before; (2) she asked Dr. Kalantar several deposition
questions about Dr. Lau’s conduct during the emergency
procedure; and (3) she asked Dr. Lau’s counsel to provide
dates in January for Dr. Lau’s deposition. Had she
prioritized Dr. Lau’s deposition in light of the impending
opposition deadline, she could have completed her plan to
depose Dr. Lau in January, leaving time to consider his
testimony in deciding whether to oppose summary judgment.
(See Dunne on Depositions in California, supra, § 1:13
[“Only 10 days’ notice (plus an additional five if mailed) of
the deposition is generally required”], citing Code Civ. Proc.,
§ 2025.270, subd. (a).)
Second, even had Stremfel’s counsel been ignorant of
the likely materiality of Dr. Lau’s testimony, we would not
find her ignorance excusable. As noted, Dr. Lau was Dr.
Kalantar’s codefendant and a percipient witness to Dr.
Kalantar’s conduct during the emergency procedure. As
such, he was an obvious potential source of information
17
contradicting Dr. Kalantar’s account of the procedure.
Further, Dr. Kalantar’s testimony provided additional
reason to recognize Dr. Lau as a material witness. Dr.
Kalantar did not recall the degree or length of Stremfel’s
oxygenation desaturation (both of which were unclear on the
version of the anesthesiology record in counsel’s possession
at the time), and he revealed that he was assisted in the
tracheostomy by Dr. Bach -- a fact conspicuously omitted
from his operative report. As the doctor who requested the
tracheostomy in response to an obstruction of Stremfel’s
airway, Dr. Lau was an obvious potential source of
information regarding the tracheostomy and Stremfel’s
desaturation. Dr. Lau’s interrogatory responses could not
have obscured his status as a material witness in advance of
the opposition deadline, as they were served months after
the deadline. We find no excuse for Stremfel’s counsel’s
purported ignorance of the likely materiality of Dr. Lau’s
testimony.
The cases on which Stremfel relies are distinguishable.
In most, the trial courts found the movants had been
reasonably diligent, and the appellate courts merely upheld
those findings under a deferential standard of review. (See
Santillan v. Roman Catholic Bishop of Fresno (2012) 202
Cal.App.4th 708, 731; Andersen v. Howland (1970) 3
Cal.App.3d 380, 383-384; Celli v. French (1951) 107
Cal.App.2d 599, 602-603; MacKenzie v. Angle (1947) 82
18
Cal.App.2d 254, 258, 261-262.)6 In the sole exception, the
Court of Appeal -- reversing a contrary finding by the trial
court -- held that the plaintiffs had been reasonably diligent
in producing a witness’s deposition testimony, despite their
6 Moreover, the courts in the foregoing cases relied on
evidence of diligence much stronger than any identified by
Stremfel. (See Santillan v. Roman Catholic Bishop of Fresno,
supra, 202 Cal.App.4th at 731 [deferring to trial court’s finding
that plaintiff had been reasonably diligent in producing
declaration executed by newly identified victim of defendant’s
sexual misconduct, where victim had not been mentioned by any
of over 100 people plaintiff had asked to identify possible victims,
and plaintiff had unsuccessfully attempted to contact 50 more
people]; Andersen v. Howland, supra, 3 Cal.App.3d at 382-384
[deferring to trial court’s finding that plaintiff had been
reasonably diligent in producing treating physician’s new opinion
based on finding made in late stages of trial by non-treating
physician, where at time of finding, treating physician was
unavailable for consultation because he had completed his
testimony and departed the state]; Celli v. French, supra, 107
Cal.App.2d at 602-603 [deferring to trial court’s finding that
plaintiff had been reasonably diligent in producing proffered
testimony of newly identified percipient witness to accident in
which defendant injured plaintiff, where witness observed
accident from home which she rarely occupied, and plaintiff had
made “very considerable” efforts to ascertain whether anyone had
been present in that home]; MacKenzie v. Angle, supra, 82
Cal.App.2d at 257, 261-262 [deferring to trial court’s finding that
plaintiff had been reasonably diligent in producing testimony of
newly identified witness, where plaintiff produced undisputed
evidence of “extensive and protracted” efforts to locate witness
prior to trial, including efforts by plaintiff’s counsel “ever since he
had been retained”].)
19
failure to depose the witness before the trial court granted
the defendant’s motion for summary judgment. (Scott v.
Farrar (1983) 139 Cal.App.3d 462, 465, 468-469.) There,
however, the movants noticed the witness’s deposition
within seven months of filing the complaint, and several
days before the defendant filed his motion (which was heard
a mere 15 days after it was filed). (Id. at 465, 468.) Here,
nearly two years passed after the filing of the complaint, and
11 months passed after the filing of Dr. Kalantar’s motion,
before Stremfel’s counsel noticed Dr. Lau’s deposition.
In sum, it was unreasonable for Stremfel’s counsel to
fail to depose Dr. Lau before declining to oppose Dr.
Kalantar’s motion for summary judgment. In the face of her
unreasonable omission, her client could not show he
exercised reasonable diligence in discovering Dr. Lau’s
deposition testimony, on which he relied in making his
motion for new trial. Accordingly, the motion lacked merit,
and the judgment must be affirmed.7
7 We need not address Dr. Kalantar’s alternative argument
for an affirmance, viz., that the evidence submitted with
Stremfel’s new trial motion was neither newly discovered nor
material.
20
DISPOSITION
The judgment is affirmed. Dr. Kalantar is entitled to
his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
21