Filed 10/11/19 Ly-Carter v. Macagy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

TUYEN LY-CARTER,

Plaintiff and Appellant,

v.

IAN MACAGY,

Defendant and Respondent.

F076715

(Super. Ct. No. 16CECG03828)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. McGuire, Judge.

Tuyen Ly-Carter, in pro. per., for Plaintiff and Appellant.

White Canepa, Mark B. Canepa and Adam Garth for Defendant and Respondent.

-ooOoo-

Two weeks after the delivery of her baby, plaintiff underwent emergency surgery for a postpartum hemorrhage. She subsequently sued the physician who delivered the baby, alleging medical negligence. Defendant moved for summary judgment, supporting the motion with an expert declaration opining that defendant’s care and treatment of plaintiff was appropriate, within the standard of care, and did not cause or contribute to any injury allegedly sustained by plaintiff. Plaintiff opposed the motion, submitting a letter from a physician who opined that plaintiff’s alleged injuries were due to vaginal lacerations that were not properly repaired at the time of delivery. The trial court excluded plaintiff’s expert’s letter, which was not in the form of an admissible declaration. It granted summary judgment in favor of defendant. Plaintiff appeals, contending the trial court should have admitted her expert’s letter, or should have permitted her to file a corrected declaration in proper form. We conclude the trial court did not abuse its discretion by excluding the inadmissible letter or denying plaintiff the opportunity to file a corrected declaration. The trial court properly granted the motion for summary judgment, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff sued defendant, the on-call obstetrician and gynecologist who delivered her baby, for medical malpractice. She alleged defendant successfully delivered her baby, then discharged her from the hospital. About two weeks later, plaintiff was admitted to a different hospital with severe pain and bleeding. She alleged she was diagnosed with severe postpartum hemorrhage caused by retained placenta from the vaginal delivery. Dr. Lola J. Loeb performed a dilation and curettage (D and C), and plaintiff remained hospitalized for three days. Plaintiff alleged defendant ignored obvious signs of a retained placenta and failed to investigate or ensure the treatment of plaintiff was within the acceptable standard of care. She allegedly suffered damage as a result.

Defendant moved for summary judgment. He supported the motion with plaintiff’s medical records and the expert declaration of an obstetrician and gynecologist, who opined plaintiff experienced a delayed postpartum hemorrhage, not caused by retained placenta, which is a recognized complication of pregnancy that could not have been predicted or prevented. Defendant’s expert concluded defendant was not negligent in his care of plaintiff, and no negligent act or omission by defendant caused or contributed to plaintiff’s alleged injuries.

Plaintiff, acting in propria persona, filed opposition to the motion. Defendant filed a reply brief and objections to plaintiff’s evidence. Defendant objected to the purported declaration of plaintiff’s expert witness, Dr. David L. Berry, on the ground it was not in fact a declaration; it was presented in the form of a letter rather than as a declaration under penalty of perjury and was therefore inadmissible. Defendant also contended Dr. Berry’s letter, even if accepted as a declaration, contained only speculative conclusions without foundation in any cited facts or specific information in the medical records, and was therefore insufficient to create a triable issue of material fact.

When the trial court posted its tentative ruling, plaintiff discovered the supporting evidence, including Dr. Berry’s letter, which she had attempted to electronically file along with her opposition, had not been received and filed by the trial court. At the hearing of the motion, defendant conceded he had been timely served with plaintiff’s opposition, including the supporting evidence, and had replied to it. The trial court afforded plaintiff additional time to file with the court the same documents that had been timely served on defendant. The trial court denied plaintiff’s request to file a corrected declaration of Dr. Berry.

Defendant subsequently filed a letter with the court, advising that on October 25, 2017, plaintiff filed her opposition documents with the court, but again omitted the supporting evidence. Defendant noted that, on October 30, 2017, plaintiff untimely filed the evidence missing from her previous filings. He asked that plaintiff not be afforded a third opportunity to file evidence, and that defendant’s motion be granted.

Plaintiff submitted a responsive letter to the court, which stated she electronically filed her documents on October 24, 2017, but some of them, including Dr. Berry’s letter, were rejected because they were not in the correct format. Immediately upon learning of the problem, she corrected it and resubmitted the papers on October 30, 2017. She asserted defendant received Dr. Berry’s letter twice.

The trial court accepted plaintiff’s October 30, 2017 filing as timely. It concluded defendant met his initial burden by presenting expert evidence that defendant’s care and treatment of plaintiff met the applicable standard of care and did not cause her any injury. The burden shifted to plaintiff to raise a triable issue of material fact.

The trial court sustained defendant’s objection to Dr. Berry’s letter, finding it was deficient as a declaration and therefore inadmissible. It also found, even if the information it contained had been set forth in a proper declaration, it would not have defeated defendant’s motion because of shortcomings in its content. The trial court granted defendant’s motion for summary judgment, and subsequently entered judgment in favor of defendant. Plaintiff appeals from the judgment.

DISCUSSION

I. Standard Applicable to a Party In Propria Persona

Plaintiff contends the trial court applied the wrong standard to her case, because, as a self-represented party, she was entitled to “a less stringent standard.” In support of this argument, plaintiff cites federal cases addressing pleading requirements in federal court. They state, for example, “a pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘ “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” ’ ” (Estelle v. Gamble (1976) 429 U.S. 97, 106.) Federal pleading standards, however, generally do not apply in California courts. (See, Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.) Further, the issue involved in this case does not involve the sufficiency of a self-represented party’s pleadings to state a viable cause of action.

In state courts in California, “[i]t is the duty of a trial judge to see that a cause is not defeated by the mere inadvertence of a lay litigant, but such litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts. [Citation.] ‘ “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’ [Citations.] … ” ’ [Citation.] [¶] Plaintiff’s argument that, as a litigant who appeared in propria persona he was somehow entitled to a more indulgent application of the rules than other litigants or attorneys is without merit. His propria persona status afforded him no special treatment. ‘When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.’ ” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055–1056.) “ ‘The fact that a layman elects to represent himself “certainly does not excuse him from a failure of proof” of his cause of action.’ ” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.)

The trial court held plaintiff to the same standard as other litigants, requiring that she comply with the same rules of evidence and procedure and meet the same deadlines as other litigants. The trial court allowed plaintiff to resubmit documents she had attempted to timely file electronically, which apparently were rejected or not received and filed by the trial court due to technical issues. It did not, however, allow her a second chance to submit a sufficient expert declaration after her time for filing opposing evidence had passed and after deficiencies in the original submission were identified by defendant. Plaintiff has not established that the trial court applied an incorrect standard to her as a party appearing in propria persona.

II. Summary Judgment

A. Standard of review

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) Once the moving defendant has met this initial 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.” (Ibid.)

On appeal, “we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

“The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) However, “[t]he same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment.” (Ibid.) Consequently, “[o]nly admissible evidence is liberally construed in deciding whether there is a triable issue.” (Ibid.) “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

B. Defendant’s showing

Defendant’s motion was supported by the expert declaration of Dr. Scott Serden. It reflected Dr. Serden reviewed plaintiff’s medical records from the hospital where defendant delivered her baby, from the hospital where Dr. Loeb treated her two weeks later, and from other providers. Dr. Serden set out the facts, derived from the medical records, on which he based his opinions. He stated the pathologist’s report after the birth of plaintiff’s baby indicated the placenta had been successfully delivered; the pathologist’s report after Dr. Loeb’s surgery did not find retained products of conception, and the findings were compatible with a delayed postpartum bleed. Dr. Serden stated:

“A delayed post-partum hemorrhage is a recognized complication of pregnancy. That is precisely what occurred in this case. It could not be predicted or prevented. There was nothing [defendant] should have done differently in the delivery and there was no reason to suspect this particular patient would have a post-partum hemorrhage weeks after she was released from the hospital. [Defendant] was not negligent in the pre-delivery, delivery, or post-delivery actions he took with [plaintiff].”

Dr. Serden stated his opinion that defendant’s care and treatment of plaintiff was at all times appropriate and within the standard of care, and set out the reasons for his opinion. He also stated that, to a reasonable degree of medical probability, no negligent act or omission of defendant caused or contributed to any injury sustained by plaintiff. Dr. Serden added that plaintiff “had an unforeseen and unpredictable post-partum bleed. The fact that this bleed occurred does not suggest that the delivering physician, or any other health care provider, caused harm to” plaintiff.

Plaintiff does not challenge the sufficiency of defendant’s showing to meet his initial burden of negating one or more elements of her cause of action. Accordingly, the only issue in this appeal is whether plaintiff’s showing in response was sufficient to raise one or more triable issues of material fact.

III. Admissibility of Dr. Berry’s Letter

A. Not made under penalty of perjury

A motion for summary judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(1).) Likewise, opposition to a motion for summary judgment “shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(2).) “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (§ 437c, subd. (d).)

In a medical malpractice action, when “the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. [Citations.] Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509 (Bushling).) “When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

The declarations submitted in support of and opposition to a motion for summary judgment must be presented in the proper form.

“Whenever, under any law of this state … , any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, … or affidavit, in writing of the person making the same … , such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, … in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” (§ 2015.5.)

A declaration executed outside California conforms to the requirements of section 2015.5 if the signature is preceded by the language: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (§ 2015.5.)

The certification or declaration under penalty of perjury is not a mere formality. “Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law.” (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.) Declarations signed outside California “must invoke ‘the laws of the State of California.’ [Citation.] Indeed, when lawmakers added this phrase to section 2015.5 in 1980, it was deemed necessary to alert out-of-state declarants that California’s perjury laws—which were made extraterritorial at the same time—might apply.” (Ibid.) A declaration is defective under section 2015.5 in the absence of this required language; it is inadmissible and cannot be used as evidence. (Kulshrestha, at pp. 612, 618.)

Dr. Berry’s initial statement took the form of a letter to plaintiff’s husband, dated September 20, 2017, on the letterhead of Austin Perinatal Associates. His curriculum vitae, which was submitted with the letter, reflected an office address in Austin, Texas and a Texas medical license. The letter was simply signed by Dr. Berry; it did not indicate the place of execution or contain a statement under penalty of perjury (under the laws of the State of California, if it was signed out of state) that the information contained in the letter was true and correct. Consequently, it did not comply with the requirements of section 2015.5 for an admissible declaration.

“We review the trial court’s ruling on the admissibility of expert testimony for abuse of discretion.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154 (Sanchez).) “[E]videntiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court.” (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) “A court abuses its discretion if its ruling is ‘ “so irrational or arbitrary that no reasonable person could agree with it.” ’ [Citation.] ‘When applying the deferential abuse of discretion standard, “the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” ’ [Citation.] ‘It is the appellant’s burden on appeal to show the trial court abused its discretion.’ ” (Sanchez, at p. 154.)

The trial court found Dr. Berry’s letter to be technically deficient as a declaration, because of its failure to comply with section 2015.5; therefore, it was held inadmissible. Substantial evidence supports its implied finding that the letter did not contain the information required by section 2015.5. The trial court’s conclusion of law that a purported declaration not containing the information required by section 2015.5 is inadmissible was correct. Consequently, exclusion of the letter was not arbitrary or capricious and was not an abuse of discretion.

B. No factual basis for opinion

“A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact. [Citation.] Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Bushling, supra, 117 Cal.App.4th at p. 510.) “ ‘[T]he trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.’ ” (Sanchez, supra, 8 Cal.App.5th at p. 156.)

“ ‘An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.’ [Citation.] Regarding causation, ‘the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.’ [Citation.] [¶] These rules apply to expert witness declarations submitted in connection with a motion for summary judgment.” (Sanchez, supra, 8 Cal.App.5th at p. 155.)

In its ruling on the motion for summary judgment, the trial court concluded that, even if Dr. Berry were allowed to sign his expert opinion letter under penalty of perjury under the laws of the State of California, bringing it into compliance with section 2015.5, the declaration would still fail to defeat defendant’s motion for summary judgment. The trial court found: (1) Dr. Berry’s opinion was based on inadmissible hearsay, which was insufficient to prove causation or failure to meet the applicable standard of care; (2) the letter did not explain how or why any facts convinced Dr. Berry that defendant’s negligence caused plaintiff’s harm, or how defendant failed to meet the standard of care; and (3) the letter did not refer to any evidence that formed the basis of his opinion, and the opinion was based on speculation.

Dr. Berry’s letter stated he reviewed plaintiff’s medical records from the hospital where defendant delivered plaintiff’s baby, the hospital where Dr. Loeb treated plaintiff for postpartum bleeding, and other providers. He stated that, after delivery of her baby, plaintiff “underwent a repair of her vaginal lacerations including a second degree perineal and right vaginal sulcus laceration repaired with 3-0 Vicryl.” Approximately two weeks postpartum, plaintiff was admitted by Dr. Loeb with a diagnosis of delayed postpartum hemorrhage; plaintiff underwent an emergency D and C and vaginal laceration repair. Dr. Berry expressed the following opinion:

“Operative pathology revealed no retained products of conception. Subsequent discussions with Dr. Loeb revealed that the vaginal lacerations could have, ‘ … very likely been the source of the postpartum hemorrhage.’

“In my opinion, it is more likely than not that [plaintiff’s] postpartum hemorrhage, emergency admission, emergency surgery, ICU admission and blood transfusion was due to severe bleeding from her vaginal lacerations. Had her vaginal lacerations been properly and adequately repaired at the time of her delivery, she would not have undergone these complications and suffered the trauma of re-admission, emergency surgery and blood transfusion.”

Dr. Berry’s first statement, “[o]perative pathology revealed no retained products of conception,” agrees with the declaration of Dr. Serden and appears to refute the manner of injury alleged in plaintiff’s first amended complaint.

The statement regarding “discussions with Dr. Loeb” does not disclose who had discussions with her, or who “revealed” vaginal lacerations could have been the source of the postpartum hemorrhage. In her opening brief, plaintiff states the discussion mentioned was between her husband and Dr. Loeb, and her husband provided the information to Dr. Berry. Thus, she confirms the information was at least double hearsay. As the trial court found, this “fails as independent proof of causation or failure to meet the standard of care.”

“An expert may rely upon hearsay and other inadmissible matter in forming an opinion. [Citation.] But that matter relied upon must ‘provide a reasonable basis for the particular opinion offered.’ ” (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.) The expert’s opinion must be based on matter “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Evid. Code, § 801, subd. (b).) An opinion apparently expressed by a doctor to a third person, who related it to the expert, which does not disclose any factual basis for that opinion or any reasoning leading to it, does not appear to provide a reasonable basis for an expert’s opinion regarding the cause of an alleged medical injury, nor does it appear to be the type of matter on which an expert would reasonably rely in forming an opinion about the cause of such an injury.

Dr. Berry expressed his opinion it was “more likely than not that [plaintiff’s] postpartum hemorrhage … was due to severe bleeding from her vaginal lacerations.” He did not identify any information in the medical records supporting his assumption that plaintiff had “severe bleeding from her vaginal lacerations.” Dr. Loeb’s description of the surgery she performed, which was contained in one of the pages of medical records plaintiff submitted with Dr. Berry’s declaration, did not attribute “severe” bleeding to the vaginal lacerations, did not indicate the lacerations were the source of the bleeding that brought plaintiff to the hospital that day, and seemed to indicate there was substantial bleeding from other areas. An expert opinion may not be based on assumptions of fact that are without evidentiary support. (Bushling, supra, 117 Cal.App.4th at p. 510.) Dr. Berry did not cite any evidence supporting his factual assumption.

Dr. Berry’s letter also did not indicate whether his conclusion that the postpartum hemorrhage and resulting treatment were due to severe bleeding from vaginal lacerations was based on the hearsay opinion he seemed to attribute to Dr. Loeb or on something else. Dr. Berry did not cite the facts on which that conclusion was based, support those facts with any evidence in the medical records or elsewhere, or explain how the facts and evidence convinced him his conclusion was more likely than not.

Further, Dr. Berry’s final statement, which implies omissions in defendant’s care and treatment of plaintiff at the time of the delivery of her baby caused the conditions that required further treatment by Dr. Loeb, was founded on his assumption that the “postpartum hemorrhage … was due to severe bleeding from her vaginal lacerations,” which, as we have stated, he failed to support with any evidentiary basis. He also failed to provide reasoned analysis connecting any facts that were supported by the evidence to his opinion regarding causation. As a result, his conclusion regarding causation was speculative and conjectural.

Dr. Berry’s letter also failed to address Dr. Serden’s opinion that plaintiff experienced a delayed postpartum hemorrhage, which was a recognized complication of pregnancy that could not be predicted or prevented. He failed to provide a reasoned explanation illuminating why, contrary to Dr. Serden’s opinion, he concluded it was more likely than not plaintiff’s bleeding was the result of unrepaired or poorly repaired vaginal lacerations.

Although the evidence submitted in opposition to a motion for summary judgment must be liberally construed, and therefore the reasoned explanation required in an opposing party’s expert declaration need not be as detailed or extensive as that required in an expert declaration filed in support of a summary judgment motion, these principles in no way eliminate the need for some form of reasoned explanation of the opposing expert’s opinions. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) Dr. Berry’s letter contained only conclusory opinions about what he thought occurred. It did not identify the facts, as shown by the evidence, that led him to conclude defendant was negligent in plaintiff’s care or give some reasoned explanation regarding why the facts led him to conclude defendant was negligent. The letter also did not explain why the facts and evidence convinced Dr. Berry it was more probable than not that defendant’s negligence was a cause of plaintiff’s injury. Thus, the letter did not inform the trial court of the facts, identify the evidence establishing them, and assist the trial court to understand why Dr. Berry believed the facts showed defendant was negligent and his negligence caused or contributed to plaintiff’s injuries. Rather, the letter stated only conclusory opinions.

We conclude the trial court did not abuse its discretion by excluding Dr. Berry’s letter and determining even if Dr. Berry’s letter had been filed in the form of a declaration in compliance with section 2015.5, it would not have been sufficient to raise a triable issue of material fact and defeat defendant’s summary judgment motion because his opinions rested on conjecture and speculation. Consequently, the trial court also did not abuse its discretion by denying plaintiff an opportunity to resubmit the expert opinion letter in declaration form, executed by Dr. Berry under penalty of perjury.

IV. Denial of Leave to Correct Declaration

Plaintiff asserts that, during the initial oral argument of the motion for summary judgment, she offered the trial court a corrected declaration of Dr. Berry, which was in proper declaration form and provided more specific information in support of his opinions. The trial court refused to allow her to file it in opposition to defendant’s motion. She contends the trial court abused its discretion in doing so.

A. Summary judgment statute

A motion for summary judgment must be served and filed at least 75 days before the date set for the hearing. (§ 437c, subd. (a)(2).) Opposition papers must be served and filed at least 14 days before the hearing. (§ 437c, subd. (b)(2).) Thus, the opposing party has approximately 60 days in which to conduct any necessary discovery, collect any further evidence, and prepare and file opposition papers.

If the opposing party files a declaration in opposition to the motion, indicating “facts essential to justify opposition may exist but cannot, for reasons stated, be presented,” the trial court must deny the motion or grant a continuance to permit the opposing party to obtain further evidence. (§ 437c, subd. (h).) Alternatively, the opposing party may submit an ex parte application for a continuance on the same ground, if the application is brought on or before the date the opposition is due. (Ibid.) An oral request for a continuance in order to provide an expert declaration in opposition to a motion for summary judgment, which is made at the hearing of the motion, is untimely. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1352, 1353.)

Plaintiff did not, at the time she filed opposition to defendant’s motion, request additional time to obtain or present evidence in opposition. Rather, on the day of the hearing of the motion, she requested leave to file a corrected declaration, to address the deficiencies identified by defendant in his reply. Although plaintiff requested leave to file the corrected declaration, rather than requesting a continuance, the effect was the same. A continuance would have been needed to allow defendant to respond to the corrected declaration on the merits, and to allow the trial court time to review both the corrected declaration and defendant’s response.

Plaintiff’s request was made after her time for filing opposition and presenting opposing evidence had passed. She made no showing to justify extending that time; she did not assert anything prevented her from filing timely and proper evidence in support of her opposition. We conclude the trial court did not abuse its discretion by denying plaintiff’s request to file a corrected declaration, which was first made orally at the hearing of the motion for summary judgment.

B. Expert designation statute

Plaintiff seems to argue the trial court should have allowed her to file the corrected expert declaration pursuant to section 2034.610. That statute, however, addresses expert witness designations for trial. When a demand for exchange of expert witness lists is made (§ 2034.210), each party must serve on the other parties a list of the experts the party expects to call at trial (§ 2034.260, subd. (b)) and an attorney’s declaration stating the qualifications of each expert, the general substance of the expert’s expected testimony, and specified other information (§ 2034.260, subd. (c)). Section 2034.610, the section cited by plaintiff, authorizes the trial court to grant a party leave to augment the expert witness list by adding an expert or to amend the declaration describing the substance of the testimony an expert is expected to give at trial. (§ 2034.610, subd. (a).) This section has no application to requests to amend or correct expert declarations filed in support of or opposition to motions for summary judgment.

C. Federal rules

Plaintiff seems to contend she should have been allowed to correct her expert declaration pursuant to rule 56 of the Federal Rules of Civil Procedure. That rule governs summary judgment motions in federal courts, and provides, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact … the court may … give an opportunity to properly support or address the fact.” (Fed. Rules Civ. Proc., rule 56(e)(1), 28 U.S.C.) Summary judgment motions in California state courts are not governed by the federal rules; they are governed by section 437c, which we discussed previously. Plaintiff has not demonstrated the trial court committed error by failing to apply federal rules to the motion in issue.

D. Section 473 and Evidence Code section 356

In her reply brief, plaintiff asserts she should have been permitted to file a corrected expert declaration pursuant to section 473 or Evidence Code section 356. Points raised for the first time in a reply brief on appeal will not be considered in the absence of a showing of good cause for failure to present them earlier. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.) This is a matter of fairness to the defendant, because “[t]o withhold a point until the closing brief deprives the [defendant] of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

Plaintiff raised these arguments for the first time in her reply brief. She gave no explanation for the failure to raise them in her opening brief. Consequently, we will not consider them.

DISPOSITION

The judgment is affirmed. Defendant is entitled to his costs on appeal.

HILL, P.J.

WE CONCUR:

DETJEN, J.

PEÑA, J.