NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MILLER, J.

Plaintiff and appellant Urimare J. Libertad appeals two separate orders granting summary judgment in favor of defendants and respondents Marvin Frankel, M.D. and Laurie Mazzei, certified physician's assistant (PA-C). She also challenges the trial court's denial of her request to continue the hearings on defendants' summary judgment motions.

FACTUAL AND PROCEDURAL HISTORY

On October 20, 2009, plaintiff filed a form complaint for wrongful death of her mother, Angela Cecilia Jimenez-D'Windt (decedent), alleging negligence against numerous health care professionals and entities. All of plaintiff's medical negligence allegations are general. Plaintiff's cause of action for medical negligence lists Dr. Frankel and PA-C Mazzei as defendants along with several other medical professionals, but does not make specific allegations against any defendant.

According to the complaint, decedent was born in April 1933, and died on December 20, 2008. Prior to her death, the complaint states decedent had multiple surgeries on her organs and body systems, along with concurrent or follow-up radiation and chemotherapy treatments, to address a fast and aggressive cancer. The complaint does not allege the dates these surgeries and treatments took place. However, it is alleged that for the one year immediately preceding decedent's death, she complained at each of her visits or consultations with medical professionals of symptoms indicating a reoccurrence of the cancer.

Despite complaints indicating a reoccurrence of her cancer, plaintiff claims the medical professionals did not examine, treat, take decedent's medical problems seriously, or seek timely referrals to other physicians to address the symptoms. As a result, medical intervention was delayed, so the cancer spread to other areas of decedent's body. According to plaintiff, this delay caused decedent to become so weak that her surgical options were foreclosed and she became virtually untreatable.

In September and October of 2010, almost a year after the complaint was filed, Dr. Frankel and PA-C Mazzei filed separate motions for summary judgment. These defendants each signed and filed supporting declarations outlining their contacts with decedent and detailing their treatment of her. In their declarations, these defendants also opined their care of decedent met the applicable standard of care.

On December 7, 2010, the trial court granted Dr. Frankel's motion and entered judgment in his favor. On December 14, 2010, plaintiff filed an ex parte application seeking to continue all hearings in December. The trial court denied the application as "improper" at a case management conference on December 15, 2010. On December 20, 2010, the court granted PA-C Mazzei's motion and entered judgment on January 3, 2011.

DISCUSSION

A. ADMISSIBILITY OF DOCUMENTARY EVIDENCE

Plaintiff challenges the admissibility of medical records lodged in support of defendants' summary judgment motions. She believes the declarations in support of the motions are not enough to authenticate the documents or to provide foundational facts. According to plaintiff, the records have not been properly authenticated, because they were "apparently being maintained by Desert Oasis Healthcare," and no custodian of the records was identified in the declarations.

"Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule. [Citation.] Such records, however, must be properly authenticated." (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.) However, "[e]videntiary objections not made at the hearing [on a summary judgment motion] shall be deemed waived." (Code Civ. Proc., § 437c, subd. (b)(5).)

Here, we were unable to locate anything in the record on appeal indicating plaintiff made any objections to defendants' documentary evidence in the trial court.1 As a result, plaintiff's objections to the admissibility of the medical records submitted in support of defendants' summary judgment motions were waived.

For the record, we note defendants are percipient witnesses with apparent expert knowledge about the allegations in plaintiff's complaint, rather than nonparty experts, and their declarations do include some authenticating information about the challenged documents. For example, Dr. Frankel indicated he had personal knowledge of the treatment and care he provided to decedent "as it relates to the home visits in September 2008 and November 2008, as described in her medical records, generally, and in the notes I created contemporaneously with my care and treatment." PA-C Mazzei's declaration also states she created notes "contemporaneously with [her] care and treatment" of decedent. Dr. Frankel and PA-C Mazzei also said the records attached to the notice of lodgment submitted with the summary judgment motions were "true and correct copies of my medical chart for the Decedent, . . . which I relied on in formulating my opinions. These records consist of my various consultations with her[,] which form the entirety of my care and interaction with the Decedent." Defendants' counsel also submitted a declaration confirming these documents were produced by defendants themselves, and were used to formulate their opinions. Although the declarations should have been more specific in some respects, it is apparent these records could have been made admissible under the business records exception to the hearsay rule. (Evid. Code, § 1271.) In any case, as noted above, plaintiff waived any objection to the documentary evidence defendants submitted in support of their declarations.

B. SUFFICIENCY OF THE SUPPORTING DECLARATIONS

Plaintiff attacks defendants' declarations as insufficient to shift the burden of proof to her. She claims the opinions expressed in their declarations are insufficient to shift the burden of proof, because they are unsupported by nonparty expert medical professionals and do not include enough information to show their treatment of decedent did not constitute medical malpractice.

"A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit because plaintiff cannot establish an element of the claim or because defendant has a complete defense. If the defendant makes this showing, the burden then shifts to the plaintiff opposing the summary judgment motion to establish that a triable issue of fact exists as to these issues. [Citations.] [¶] `[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.' [Citation.] The burden of production involves the presentation of evidence. [Citation.] `A prima facie showing is one that is sufficient to support the position of the party in question.' [Citation.] [¶] To meet the burden of production, the party moving for summary judgment must support that motion `by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.' (Code Civ. Proc., § 437c, subd. (b)(1).) Supporting affidavits or declarations `shall be made by any 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.' [Citation.]" (Garibay v. Hemmat, supra, 161 Cal.App.4th at p. 741.)

"The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) "[T]he standard of care in a medical malpractice case is a matter `peculiarly within the knowledge of experts.' [Citation.]" (Ibid.) As a result, "expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to [a layperson]." (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) A defendant may therefore seek summary judgment in a motion based on a well-supported expert declaration demonstrating treatment of the patient was within the appropriate standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) To be entitled to a trial, a plaintiff must respond to such a motion with a conflicting and properly supported expert declaration. (Ibid.)

We disagree with plaintiff's contention that defendants' declarations are not enough to shift the burden of proof to plaintiff, because the opinions expressed therein are unsupported by nonparty expert medical professionals. "A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony." (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35.) Thus, a treating physician "may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician's work." (Id. at p. 39.) Thus, a declaration by a treating medical professional, named as a defendant in a medical malpractice action, may be enough to shift the burden of proof to the plaintiff.

In his declaration, Dr. Frankel sets forth his credentials as a licensed physician with an emphasis in family practice. His declaration further states he is familiar with the standard of care for the treatment of patients in a family practice setting via office and home visits. In 2007, he became involved with a home care program for homebound elderly patients with severe, chronic conditions. Apparently, as part of this program, Dr. Frankel's declaration indicates he had only two visits or consultations with decedent. These visits took place on September 19, 2008, and November 20, 2008, shortly before decedent's death on December 20, 2008. In his professional opinion, and based on his background, training, and experience, Dr. Frankel opined his treatment of decedent fell within the standard of care.

The declaration of PA-C Mazzei states she is a certified physician's assistant. Her education included a bachelor's degree, a master's degree in public health and a second master's degree in physician assistant studies. She has been training and working in this field since 2006 or 2007. She also became involved with a home care program for homebound elderly patients with severe, chronic conditions and is familiar with the standard of care for practicing in this setting. PA-C Mazzei's declaration states she had two visits with decedent on October 27, 2008, and November 20, 2008. The second visit on November 20, 2008 was made jointly with Dr. Frankel. In her professional opinion, and based on her background, training, and experience, PA-C Mazzei opined her treatment of decedent fell within the applicable standard of care.

"In a medical negligence action a defendant doctor is not entitled to obtain summary judgment based on a conclusory expert declaration which states the opinion that no malpractice has occurred, but does not explain the basis for the opinion." (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 521.) Nor is summary judgment assured simply because the defendant doctor's declaration is unopposed. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) Here, the declarations submitted by Dr. Frankel and PA-C Mazzei are conclusory, because they do not state what the standard of care required or how they met the standard.

On the other hand, when viewed in light of the nature of the negligence allegations in the complaint, the factual assertions made in the declarations do show there is an absence of evidence against Dr. Frankel and PA-C Mazzei to establish the element of causation against them. Essentially, the complaint alleges decedent's death was caused by medical negligence, because she complained of symptoms indicating a reoccurrence of her cancer for a year prior to her death, and her condition became untreatable when medical providers delayed making referrals to specialists for evaluation and treatment.

According to their declarations, Dr. Frankel and PA-C Mazzei did not even become involved in decedent's medical care until a short time before her death. Each defendant made only two home care visits to decedent. Dr. Frankel's declaration and contemporaneous notes for the first home visit on September 19, 2008, indicate he examined decedent; she was not experiencing any pain, was in "no acute distress," and appeared "clinically stable." The only problems noted were "suboptimal control" of decedent's diabetes and risk for fall. Dr. Frankel indicated decedent should continue her medication and he would reevaluate her on the next visit. Decedent was also given a referral for "gait and balance training." In connection with her first visit, PA-C Mazzei noted decedent was experiencing generalized abdominal pain. As a result, her plan was to follow up with specialists to determine the status of a referral to specialists to address the abdominal pain.

At the time of the second home care visit by each defendant on November 20, 2008, it was noted that decedent had been referred to specialists for evaluation and treatment of her condition. At that time, it was also determined her condition was too complex and extensive to be handled in the home care program, and her case was therefore transferred to an "Intense Care Manager." Dr. Frankel and PA-C Mazzei had no further involvement in decedent's medical care.

On these facts alone, no reasonable trier of fact could conclude there was any causal connection between Dr. Frankel's or PA-C Mazzei's care and treatment of decedent, and the death of decedent as a result of any alleged delay in obtaining medical intervention for a reoccurrence of her cancer. With respect to the involvement of the moving defendants in decedent's care, the record shows her complaints of abdominal pain were promptly addressed by referrals to specialists. These facts were sufficient to shift the burden to plaintiff to show a triable issue of fact as to these defendants on the issue of causation. As noted above, plaintiff filed no opposing evidence to defendants' motions. Defendants were therefore entitled to summary judgment in their favor.

C. EX PARTE APPLICATION TO CONTINUE SUMMARY JUDGMENT HEARINGS

Plaintiff contends the trial court should have granted her ex parte application to continue the hearings on defendants' summary judgment motions, because defendants refused to stipulate to a continuance, she had a mental health reason for requesting the continuance, and there is a strong public policy in favor of a trial on the merits.

In her ex parte application, defendant requested a continuance because she was grieving the death of her daughter. The trial court denied plaintiff's ex parte application as improper. In support of the application, plaintiff attached a letter from a grief counselor indicating it would be detrimental to plaintiff's mental health to attend hearings in December. This was the sole reason plaintiff sought a continuance of the hearings on defendants' summary judgment motions.

A trial court's decision to deny a request for a continuance is reviewed for an abuse of discretion. (Mahoney v. Southland Mental Health Association Medical Group (1990) 223 Cal.App.3d 167, 170.) A motion to continue a summary judgment motion must be accompanied by a supporting affidavit and must be timely filed "on or before the date the opposition response to the motion is due." (Code. Civ. Proc., § 437c, subd. (h).) To obtain a continuance of a summary judgment motion, a party must make a showing of "good cause." (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.) A continuance may be warranted where the nonmoving party shows essential facts to oppose the motion may exist but cannot then be presented, and states good reasons why additional time is needed to obtain these essential facts. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) In other words, there must be a showing as to why the essential facts could not have been obtained earlier. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255.) Thus, a nonmoving party's lack of diligence may be considered in denying a request for a continuance. (Id. at p. 257.)

Here, the trial court did not abuse its discretion in denying plaintiff's ex parte request for a continuance. First, plaintiff's moving papers only offered a reason why plaintiff should not appear at any court hearings in December 2010. Although the case had been pending for more than a year, plaintiff's moving papers offered no reason why she was unable to file a written opposition and a supporting expert declaration to either summary judgment motion. As a result, there is nothing to indicate she had any substantive basis for opposing defendants' motions. Second, plaintiff's request for a continuance was untimely as to both motions. A nonmoving party's opposition to a summary judgment motion must be "served and filed not less than 14 days preceding the noticed or continued date of hearing." (Code Civ. Proc., § 437c, subd. (b)(2).) Plaintiff's request was filed on December 14, 2010. The hearing on Dr. Frankel's motion had already occurred on December 7, 2010, and his motion had been granted. The hearing on PA-C Mazzei's summary judgment motion was scheduled for December 20, 2010, so plaintiff's request was not timely filed 14 days before the hearing. The trial court was therefore justified in denying plaintiff's ex parte request for a continuance.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

RAMIREZ, P. J. and KING, J., concurs.