2012-00134042-CU-MM
Diane Graham vs. Paul J. Donald, M.D.
Nature of Proceeding:
Filed By:

Motion for Summary Judgment and/or Adjudication
Minder, Thomas G.Filed By: Minder, Thomas G.
Defendant Regents of the University of California’s Motion for Summary
Judgment/Summary Adjudication is unopposed and is granted.

Defendant’s Request for Judicial Notice is granted.

Plaintiff alleges a claim for medical malpractice arising out of an April 18 ,2012
surgery on her head and neck. Plaintiff alleges that the surgery was unnecessary and
below the standard of care because defendant Dr. Donald negligently diagnosed
plaintiff with malignant melanoma of the eustachian tube.

In support of the motion, defendant has submitted admissible evidence that Dr. Donald
did not fall below the standard of care in that a pre-op biopsy was not required, and
that an amended pathology report confirmed the diagnosis of malignant melanoma of
the right Eustachian tube. Diane Graham’s complaints of double vision in her right
eye, difficulty speaking, necessity of eating by way of tube syringe, and other claimed
injuries are known complications of the surgery performed on April 18, 2012.
(Declaration of Dr. Paul J. Donald)

The moving party bears the burden of persuasion that there is no triable issue of
material fact and that she is entitled to judgment as a matter of law. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850. A party moving for summary judgment
meets this burden by presenting evidence demonstrating that one or more elements of
the plaintiff’s cause of action cannot be established or that there is a complete defense
to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th 826,
849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the
plaintiff to show that a triable issue of material fact exists with regard to that cause of
action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar, at p. 850.)
Defendant has presented sufficient evidence to shift the burden to plaintiff to present
evidence raising a triable issue of material fact. In the absence of any opposition, it is
undisputed that Dr. Donald did not fall below the standard of care in his treatment of
plaintiff’s medical condition.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.