Filed 8/24/21 Slosar v. Pristine Surgery Center 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

BRIAN SLOSAR,

Plaintiff and Appellant,

v.

PRISTINE SURGERY CENTER, INC. et al.,

Defendants and Respondents.

F078687

(Super. Ct. No. 16CECG02347)

OPINION

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

McGuire, Judge.

Accident, Injury and Medical Malpractice Attorneys of California and Daniel L. 

Carter, for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie and Daniel L. 

Wainwright, for Defendants and Respondents. 

-ooOoo-
2.

Appellant Brian Slosar (Slosar)1sued respondents Pristine Surgery Center, Inc. 

and Prahalad B. Jajodia, M.D., (collectively, Pristine) for general negligence (viz., 

medical malpractice) in connection with a colonoscopy performed on Slosar by Pristine. 

Pristine filed a motion for summary judgment, or in the alternative, summary 

adjudication (MSJ). Slosar filed ex parte applications to continue the MSJ on several 

grounds, including to conduct discovery Slosar contended was needed to oppose the MSJ, 

as well as an alleged attorney-client conflict of interest necessitating a substitution of 

attorney. The trial court denied Slosar’s ex parte applications, and granted Pristine’s 

MSJ. Slosar now appeals from those rulings. Concluding both that the trial court did not 

abuse its discretion in denying Slosar’s ex parte applications and that the trial court’s 

granting of Pristine’s MSJ was correct, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On or about May 19, 2015, Pristine performed a colonoscopy on Slosar. Slosar 

alleged he suffered an intestinal perforation during the procedure, which resulted in 

leakage of fluid into his abdomen, requiring additional surgeries and causing ongoing 

pain, discomfort, and disability. 

On July 21, 2016, Slosar filed a complaint for general (medical) negligence 

against Pristine. 

Pristine propounded written discovery as part of its defense to Slosar’s complaint, 

including special interrogatories that sought the identities of each physician or health care 

provider who had informed Slosar that Pristine fell below the degree of skill and care 

required of a healthcare provider practicing under the same or similar circumstances as 

1 Slosar’s then wife, Corrina Slosar, was a coplaintiff in the underlying action, 

having asserted a loss of consortium claim based on the same nucleus of operative facts 

and same legal theory as Slosar’s medical malpractice cause of action. It does not 

appear, however, that Corrina Slosar joins her former husband in pursuing this appeal. 

Consequently, references to Slosar will pertain solely to Brian Slosar.
3.

those involved in Slosar’s colonoscopy. In his July 21, 2017 responses to Pristine’s 

special interrogatories, set one, Slosar indicated that at that time no doctors had been 

deposed or questioned in connection with the case, and that Slosar consequently had no 

names to provide Pristine in response to Pristine’s request. 

On August 10, 2018, more than a year later, and more than two years after Slosar 

filed his complaint, Pristine filed its MSJ, which included a separate statement of 

undisputed material facts, supporting declarations with exhibits, and a statement of 

evidence with additional exhibits. Pristine retained Dr. John P. Cello as a medical 

standard of care expert who rendered an opinion in support of Pristine’s MSJ. The MSJ’s 

primary contention was that Slosar’s cause of action for “general negligence” had no 

merit because Dr. Cello’s expert testimony showed the care and treatment rendered to 

Slosar by Pristine was at all times within the applicable standard of care, and that Slosar 

could adduce no evidence to the contrary. 

Slosar filed no opposition to Pristine’s MSJ, but about two months later, on 

October 16, 2018, Slosar’s counsel indicated to the trial court that he would no longer be 

Slosar’s attorney of record, and would be signing a substitution of attorney that day.2 

On October 17, 2018, Slosar filed an ex parte application for an order to continue 

the hearing on Pristine’s MSJ and to continue the scheduled trial, which application 

included a memorandum of points and authorities. Slosar’s ex parte application indicated 

that a conflict of interest had arisen between Slosar and his counsel, which allegedly 

prevented the timely completion of Slosar’s opposition to Pristine’s MSJ. Slosar’s 

counsel also claimed in his supporting declaration to have sustained “calendaring 

limitations,” staffing problems, “limits in time,” and personal and familial health issues 

2 Although Slosar’s counsel substituted out shortly after this date, he was the 

counsel referred to in the documents regarding the MSJ, which are relevant to the issues 

in this appeal. Thus, our continuing references to Slosar’s counsel are to that original 

counsel.
4.

that likewise prevented the timely completion of both discovery and Slosar’s opposition 

to Pristine’s MSJ. 

On October 18, 2018, an in camera hearing was held between the trial court and 

Slosar’s counsel. On October 18, 2018, and October 19, 2018, Slosar filed substitutions 

of attorney. 

On October 23, 2018, following a hearing, the trial court denied Slosar’s ex parte 

application to continue the MSJ. 

On October 31, 2018, Slosar filed declarations of several of Slosar’s counsel’s 

own employees in opposition to Pristine’s MSJ, as well as a “continued declaration” of 

his counsel himself, and renewed his ex parte application to continue the MSJ, and to 

continue the trial. The gravamen of Slosar’s argument in support of his renewed effort to 

continue Pristine’s MSJ was that facts essential to justify opposition to the MSJ might 

exist, but could not, for reasons stated, be presented at the scheduled hearing date of the 

MSJ. Specifically, Slosar indicated he anticipated that the deposition of Dr. Jajodia 

would create triable issues of material fact. Slosar’s renewed ex parte application also 

reiterated the same “calendaring limitations,” staffing problems, “limits in time,” and 

personal and familial health issues that he previously claimed prevented the timely 

completion of both discovery and opposition to Pristine’s MSJ. Slosar again raised the 

argument that due to the conflict of interest that had arisen between Slosar and his 

counsel, the trial court had good cause to grant a continuance of the MSJ and the trial. 

Additionally, Slosar claimed excusable neglect required the trial court to consider his 

late-filed moving papers. 

On October 31, 2018, following a hearing, the trial court again denied Slosar’s ex 

parte application to continue Pristine’s MSJ. The trial court then granted that MSJ. 

On November 2, 2018, the trial court entered its judgment in favor of Pristine. 

On January 4, 2019, Slosar filed his notice of appeal. 
5.

DISCUSSION

Slosar contends that the trial court abused its discretion when it denied his ex parte 

application for a continuance of Pristine’s MSJ and his request to file a late opposition to 

Pristine’s MSJ, and erred as a matter of law in granting Pristine’s MSJ. 

I. Summary Judgment 

Summary judgment is a mechanism that cuts through the parties’ pleadings and 

allows the court to determine whether a trial is necessary to resolve their dispute. (Code 

Civ. Proc.,

3 § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 

843 (Aguilar).) An MSJ shall be granted where there is no triable issue of any material 

fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c); 

Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) “A defendant moving for 

summary judgment meets its burden of showing that there is no merit to a cause of action 

if that party has shown that one or more elements of the cause of action cannot be 

established or that there is a complete defense to that cause of action.” (Blue Shield of 

California Life & Health Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) 

“If the defendant does so, the burden shifts back to the plaintiff to show that a triable 

issue of fact exists as to that cause of action or defense.” (Ibid.) The plaintiff must 

produce admissible evidence to show that a triable issue of material fact exists in order to 

overcome a showing that one or more elements of the cause of action cannot be 

established. (§ 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 

72.)

To mitigate summary judgment’s harshness, section 437c, subdivision (h) virtually 

mandates the granting of continuance requests upon a good faith showing by affidavit 

3 Subsequent statutory references are to the Code of Civil Procedure, unless 

otherwise specified.
6.

that a continuance is needed to obtain facts essential to justify opposition to an MSJ.4 

(Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100-101 (Knapp).) “[There is] little room 

for doubt that such continuances are to be liberally granted.” (Bahl v. Bank of America

(2001) 89 Cal.App.4th 389, 395.)

II. Analysis

A. Denial of Slosar’s Ex Parte Application for Continuance of MSJ

We review the trial court’s denial of an application for continuance under 

section 437c, subdivision (h) for abuse of discretion. (Knapp, supra, 123 Cal.App.4th at 

p. 100.) Here, even employing the standard under which those continuance requests are 

liberally granted, we conclude that the trial court did not abuse its discretion by denying 

Slosar’s request in this instance. We reach this conclusion for several reasons.

First, Slosar’s declaration in support of the application for continuance did not 

contain the requisite indication in good faith of the essential facts that Slosar believed 

existed to oppose Pristine’s MSJ and the reasons those facts could not be presented in 

opposition to the motion. Slosar’s declaration, in fact, did not identify any specific facts 

essential to oppose the MSJ. Instead, Slosar’s declaration pointed to (1) an alleged 

conflict that had developed between Slosar and his counsel, and (2) counsel’s workload 

and personal difficulties.5 Slosar’s memorandum of points and authorities in support of 

4 Section 437c, subdivision (h) reads: “If it appears from the affidavit submitted in 

opposition to a motion for summary judgment or summary adjudication, or both, that 

facts essential to justify opposition may exist but cannot, for reasons stated, be presented,

the court shall deny the motion, order a continuance to permit affidavits to be obtained or 

discovery to be had, or make any other order as may be just. The application to continue 

the motion to obtain necessary discovery may also be made by ex parte motion at any 

time on or before the date the opposition response to the motion is due.”

5 Slosar’s opening brief asserts that the declarations filed in support of Slosar’s ex 

parte application for continuance indicated that Slosar’s counsel “had been diagnosed 

with an aggressive prostate cancer ahead of the [MSJ] hearing.” A review of both the 

October 17, 2018 declaration and the October 31, 2018 “continued declaration” of 

Slosar’s counsel, however, fails to reveal any such statement or indication. The only
7.

his ex parte application did briefly reference Slosar’s “continued treatment of care and 

professional services” in the immediate five days following Slosar’s colonoscopy, and 

expressed a desire to take the depositions of Drs. Jajodia and Cello. However, a 

memorandum of points and authorities is not a declaration or affidavit, and Slosar’s 

declaration in support of his application still failed to satisfy the requirement that it show 

“facts essential to justify opposition may exist.” (§ 437c, subd. (h); Roth v. Rhodes

(1994) 25 Cal.App.4th 530, 548.)

All of the declarations submitted by Slosar emphasized the conflict of interest that 

allegedly arose between Slosar and his counsel as a basis to grant the continuance. The 

trial court, however, not only considered the contents of the supporting declarations in 

this regard before ruling on the ex parte application, it also afforded Slosar’s counsel an 

in camera hearing to discuss the issue in detail. While understandably no transcript of 

that in camera hearing exists, apparently nothing disclosed or discussed during that 

hearing led the trial court to conclude that, whatever issues befell the relationship 

between Slosar and his counsel, they warranted a continuance of Pristine’s MSJ (though 

Slosar’s counsel immediately thereafter filed a substitution of attorney). “ ‘A judgment 

or order of the lower court is presumed correct. All intendments and presumptions are 

indulged to support it on matters as to which the record is silent, and error must be 

affirmatively shown. This is not only a general principle of appellate practice but an 

ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.) Slosar has presented no facts or arguments on appeal 

sufficient to disturb the considered judgment of the trial court with respect to its denial of 

Slosar’s ex parte application following the in camera hearing.

medical issue specific to Slosar’s counsel that is mentioned in the supporting declarations 

is a case of shingles. 
8.

The declarations offered by Slosar in support of the ex parte application for 

continuance neither explained how outstanding discovery was related to issues raised by 

Pristine’s MSJ, nor showed that a continuance was needed to obtain facts essential to 

justify opposition to the MSJ. Instead, the declarations merely catalogued the series of 

unfortunate events that had plagued Slosar’s counsel.

Second, Slosar’s application for a continuance presented “no justification for the 

failure to have commenced the use of appropriate discovery tools at an earlier date.” 

(FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76.) Slosar did not 

explain any failure to discover facts relating to the MSJ. Slosar had over two years 

within which to develop the factual and expert opinion basis of his medical malpractice 

claim against Pristine, but completely failed to do so. Slosar never adequately explained 

his lack of a medical expert to opine in support of his medical malpractice claim against 

Pristine. If Pristine’s failure to meet the relevant standard of care was as patent as 

Slosar’s charging allegations asserted, it should have been a relatively easy task for 

Slosar to procure a qualified expert to opine as to the same. Slosar, however, did not do 

so, and provided no explanation or justification for such failure. While perhaps not 

determinative (see Bahl v. Bank of America, supra, 89 Cal.App.4th at pp. 397-398), 

Slosar’s lack of diligence here was an additional factor relevant to the trial court’s 

exercise of discretion in its refusal to continue the summary judgment hearing. (See FSR 

Brokerage, Inc., supra, 35 Cal.App.4th at p. 76; A & B Painting & Drywall, Inc. v. 

Superior Court (1994) 25 Cal.App.4th 349, 356-357.)

Slosar’s reliance on Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765 

(Melzark) in this regard is misplaced. Melzark does indeed articulate the proposition that 

while a plaintiff cannot defeat a well-founded summary judgment motion without setting 

forth specific facts controverting the motion, “[a]n exception is made for an opposing 

party who has not had an opportunity to marshal the evidence, and a summary judgment 

motion will be denied or continued if the opposing party declares that ‘facts essential to 
9.

justify opposition may exist but cannot, for reasons stated, then be presented.’ ” (Id. at 

pp. 770-771.) However, in this instance Slosar had numerous opportunities to marshal 

the requisite evidence and specific facts to controvert Pristine’s MSJ. In addition to the 

more than two years that the litigation had been active at the time of the filing of 

Pristine’s MSJ, there was also the more than one year between the subject colonoscopy 

and the filing of Slosar’s complaint, and the more than two months following the filing of 

Pristine’s MSJ during which the expert opinion(s) necessary to carry Slosar’s burden of 

proof on his medical malpractice claim could and should have been obtained. Slosar took 

advantage of none of these opportunities to marshal the requisite evidence, and offered 

the trial court no real explanation for his failure to do so. Nor did Slosar at any prior 

point during the two-year litigation of this matter prior to the filing of Pristine’s MSJ seek 

to obtain a trial continuance (either by stipulation or via court order) as a means of 

addressing the scheduling and workload issues that allegedly plagued Slosar’s counsel. 

Slosar’s own inactivity did not meet the standard articulated by Melzark.

Likewise, Slosar’s reliance on Frazee v. Seely (2002) 95 Cal.App.4th 627 (Frazee) 

is unavailing. While the Frazee court did hold that it was an abuse of discretion to refuse 

to grant a continuance when Frazee’s counsel explained in a declaration that he had not 

been able to complete extensive discovery due to logistical and scheduling problems, the 

facts and circumstances of Frazee stand in contrast to the facts and circumstances of this 

case. Slosar, unlike Frazee, had not even undertaken meaningful discovery, let alone 

reached a point of near completion of discovery, by the time of the MSJ. In Slosar’s 

case, unlike Frazee’s, the arguments raised in favor of Slosar’s application for a 

continuance did not center around the need for completion of the transcription of 

depositions already taken, or the taking of depositions already calendared at the time of 

the MSJ, or the receipt of responses to pending written discovery requests. To the 

contrary, Slosar’s declaration in support of his ex parte application for a continuance did 

not indicate any pending discovery efforts on Slosar’s part, but rather ruminated on the 
10.

possibility of as yet unattempted discovery options. Frazee was in the middle of 

important discovery when the defendants’ MSJ was filed; by contrast, Slosar had not ever

undertaken important (or even basic) discovery when Pristine’s MSJ was filed. Indeed, 

there is no evidence in the record before us that Slosar had engaged in any written 

discovery, taken any depositions, or engaged any medical experts at the time of the filing 

of Pristine’s MSJ. Likewise, while Frazee held that section 437c, subdivision (h) allows 

for further discovery to properly oppose a motion, regardless of discovery conducted for 

trial, in Slosar’s case more than two months had passed between the filing of Pristine’s 

MSJ and the filing of Slosar’s ex parte application for a continuance of the MSJ (Frazee

had less than one month). There is no evidence that Slosar even attempted to undertake 

any discovery specific to oppose Pristine’s MSJ during that period of time.

While Slosar’s counsel apparently was experiencing personal and professional 

turmoil during the pendency of Pristine’s MSJ, there is no evidence that he either 

attempted to at least plan discovery efforts during that pendency, or filed an application 

for a continuance prior to the date an opposition to the MSJ was due (i.e., at the earliest 

possible juncture). Although the declarations of counsel in support of the application for 

continuance emphasized the press of other business as an impediment to developing an 

opposition to Pristine’s MSJ, they do not really indicate how such other business was 

unusually or unforeseeably pressing during the specific two-month period of time after 

the MSJ was filed. 

Section 437c makes no mention of a need to show diligence, but an utter lack of 

effort and meaningful opposition cannot be overlooked, and may be a factor justifying a 

court’s refusal to grant a continuance under section 437c, subdivision (h). (Cooksey v. 

Alexakis (2004) 123 Cal.App.4th 246, 255-257.) Notwithstanding that the Legislature 

has provided for the fairly lenient granting of continuances to oppose summary judgment 

motions, under these facts the trial court did not abuse its discretion by refusing to grant 

Slosar’s request in this regard.
11.

B. Granting of Pristine’s MSJ

Having concluded that the trial court did not err in refusing to grant Slosar a 

continuance, we turn to the question of whether it thereafter properly granted Pristine’s 

MSJ.

Courts usually follow a three-pronged analysis regarding their consideration of 

MSJs. (Lease & Rental Management Corp. v. Arrowhead Central Credit Union (2005) 

126 Cal.App.4th 1052, 1057-1058.) The first prong involves identifying the material 

issues via the pleadings, the second prong involves determining whether the moving 

party has established facts negating the opposing party’s claims, and the third prong is 

determining whether the opposing party then demonstrates the existence of a triable issue 

of material fact. (Ibid.) To obtain summary judgment, all a defendant need do is show 

that the plaintiff cannot establish at least one element of the cause(s) of action; he need 

not conclusively negate all such elements. (Aguilar, supra, 25 Cal.4th at p. 853; Miller v. 

Department of Corrections (2005) 36 Cal.4th 446, 460.) A defendant need only negate 

the plaintiff’s theories of liability as alleged in the complaint—“that is, a moving party 

need not refute liability on some theoretical possibility not included in the pleadings.” 

(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.)

A plaintiff may not rely on the bare denials contained in its pleadings or on mere 

speculation when opposing an MSJ; rather, the plaintiff must show the existence of a 

dispute of material fact with competent evidence. (Luders v. Pummer (1957) 152 

Cal.App.2d 276, 278.) If a defendant is entitled to summary judgment based upon its 

proof, the plaintiff can only overcome the summary judgment by introducing its own 

competent evidence to create a triable issue of material fact. (Ibid.)

We review the grant of summary judgment, a pure question of law, de novo. 

(Aguilar, supra, 25 Cal.4th at p. 860; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 

334; Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.) In 

doing so, we independently review the record that was before the trial court, and accept 
12.

as undisputed those portions of the moving party’s evidence that are not contradicted by 

the opposing party’s evidence. (A-H Plating, Inc. v. American National Fire Ins. Co. 

(1997) 57 Cal.App.4th 427, 433-434.) We conduct the same procedure employed by the 

trial court, which consists of an examination of (1) the pleadings to determine the 

elements of the claim for which relief is sought; (2) the summary judgment motion to 

determine if the movant has established facts justifying judgment in its favor; and (3) the 

opposition to the motion—assuming the movant has met its initial burden—to decide 

whether the opposing party has demonstrated the existence of a triable, material fact 

issue. (Knapp, supra, 123 Cal.App.4th at p. 84.)

Slosar’s complaint plainly framed a medical malpractice claim based on the 

alleged perforation of his intestine by Pristine with the colonoscope that Pristine used to 

conduct Slosar’s colonoscopy, and on the alleged post-operative actions (and inactions) 

of Pristine. “ ‘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.’ ” (Lattimore v. 

Dickey (2015) 239 Cal.App.4th 959, 968.)

The first element addressing the standard of care “is the key issue in a malpractice 

action and can only be proved by expert testimony, unless the circumstances are such that 

the required conduct is within a layperson’s common knowledge.” (Lattimore v. Dickey, 

supra, 239 Cal.App.4th at p. 968.) “Both the standard of care and a defendant’s breach 

must normally be established by expert testimony in a medical malpractice case.” (Avivi 

v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467, fn. 1.)

Having identified Slosar’s theories of malpractice, we proceed to the second prong 

of the summary judgment analysis and “exercise an independent review to determine if 

the defendant moving for summary judgment met its burden of establishing a complete 

defense or of negating each of the plaintiff’s theories and establishing that the action was 
13.

without merit.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 

Cal.App.4th 309, 320.)

Dr. Cello’s declaration in support of Pristine’s MSJ contained paragraph 10 that 

read: “I am of the opinion that the nurses and related staff at [Pristine] and Dr. Jajodia at 

all times complied with the applicable standard of care in all respects with regard to the 

care and treatment provided to Brian Slosar in May of 2015 as it pertains to the 

colonoscopy.” (Unnecessary capitalization omitted.) Dr. Cello’s declaration also 

contained paragraph 11 that read: “[I]t is my opinion that, to a degree of medical 

probability, no act, error or omission on the part of any [Pristine] personnel and/or Dr. 

Jajodia caused or contributed, or was a substantial factor, in causing the injuries sustained 

by [Slosar].” (Unnecessary capitalization omitted.)

In further paragraphs comprising his declaration, Dr. Cello stated Pristine’s 

decision to recommend and then perform the colonoscopy on Slosar was in Dr. Cello’s 

professional opinion medically indicated; Slosar provided informed consent to the 

colonoscopy; and there was nothing done by Pristine pre-operatively, intra-operatively, or 

post-operatively that was below the relevant standard of medical care. 

In particular, Dr. Cello opined that Slosar’s colonoscopy was performed by 

Pristine with no complications or any evidence of a breach in the standard of care, and 

that the post-procedure care, monitoring and assessments of Slosar by Pristine were 

“reasonable, appropriate and within the applicable standard of care.” Dr. Cello’s 

declaration noted that Slosar left Pristine’s facilities on May 19, 2015, without any 

reported issues, problems or concerns related to the symptoms Slosar later reported 

experiencing. Observing that Slosar did not seek further medical care until May 21, 

2015, Dr. Cello asserted that the finding of multiple diverticula in Slosar’s intestinal tract 

at that time had nothing to do with the May 19, 2015 colonoscopy performed on Slosar 

by Pristine. Dr. Cello found the May 26, 2015 surgical pathology diagnosis of Slosar by 

William C. Pitts, M.D., of sigmoid colectomy, diverticulosis, diverticulitis, and focal 
14.

diverticular rupture to be “extremely relevant” insofar as Dr. Cello concluded those 

findings had nothing to do with the May 19, 2015 colonoscopy. Dr. Cello found this 

significant because Slosar’s diverticulosis with diverticulitis involving the sigmoid colon 

and focal diverticular rupture could not in Dr. Cello’s opinion have been caused by the 

colonoscope Pristine used during Slosar’s colonoscopy. According to Dr. Cello, such 

colonoscopes shut off at about “40 to 50 mm” of mercury in pressure, and Dr. Cello 

viewed the relevant literature as being “clear that you need 300 mm [of mercury in] 

pressure to blowout a diverticulum.” Additionally, Dr. Cello regarded the ruptured 

diverticula Slosar had as “an extremely common cause of admission” to the hospital with 

left lower quadrant abdominal pain like that Slosar presented with on May 20 and 21, 

2019, after his colonoscopy. 

These opinions expressed by Dr. Cello objectively established facts negating 

Slosar’s claim that Pristine’s alleged general medical negligence was the proximate cause 

of Slosar’s diverticulitis involving the sigmoid colon and focal diverticular rupture. 

Specifically, Pristine met its burden of showing that Slosar could not establish two 

essential elements of his negligence claim: breach of duty and causation of harm. 

Pristine thus satisfied the second prong of the MSJ analysis; the burden thereafter shifted 

to Slosar on the third prong of that analysis.

In response, Slosar provided no evidence demonstrating the existence of a triable 

issue of fact regarding breach or causation, failing to comply with the requirements of 

section 437c, subdivision (b)(3) for a separate statement of material facts opposing 

Pristine’s MSJ. Slosar, simply put, did not meet his burden under the third analytical 

prong. Over the course of more than two years of litigation and discovery in the case, 

Slosar never obtained any expert opinion(s) to contradict those expressed by Dr. Cello. 

Thus, Dr. Cello’s conclusions were completely unchallenged by Slosar (despite his 

bearing the ultimate burden of proof as the plaintiff in the litigation), and Pristine was 
15.

consequently entitled to entry of judgment in its favor as a matter of law. It was therefore

proper for the trial court to grant Pristine’s MSJ on the merits.

Slosar’s arguments that he had insufficient time to complete the discovery he 

deemed necessary to oppose Pristine’s MSJ are unavailing, as they do not account for the 

25-month period of time that elapsed before Pristine filed its MSJ. As noted, medical 

malpractice cases are particularly dependent upon expert testimony, of which Slosar 

never had any. In light of the fact that medical malpractice cases are inevitably “battles 

of the experts,” Slosar’s delinquency in this regard is inexplicable, and Slosar offers no 

explanation for it in his briefs on appeal, focusing instead on the two-month period of 

time between the filing of Pristine’s MSJ and his own efforts to obtain new counsel and 

respond to the MSJ. Yet even in that regard Slosar offered the trial court no real

explanation for his delinquency in conducting no discovery at all during that two-month 

period of time. In sum, there were no triable issues of material fact presented in 

opposition to Pristine’s MSJ, and summary judgment was thus appropriate to dispose of 

the claims alleged in Slosar’s complaint.

Although the trial court’s order does not explicitly mention the general principle 

that, “in most instances,” the immediate grant of summary judgment is too harsh a 

consequence when (as here) a plaintiff’s pleadings have failed to comply with applicable 

requirements (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74), it is nevertheless 

apparent from the record that the trial court—in the pleadings, hearings, and ex parte 

conference the trial court reviewed and engaged in—did reach the question of whether 

the circumstances of this case were different from “most instances” in a way that justified 

denying the opposing party an opportunity to file a proper opposition to an MSJ. This 

was not an instance of a plaintiff filing a deficient opposition to an MSJ; Slosar filed no 

meaningful opposition at all.

“No rule of decision is better or more firmly established by authority, nor one 

resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself 
16.

correct in law, will not be disturbed on appeal merely because given for a wrong reason. 

If right upon any theory of the law applicable to the case, it must be sustained regardless 

of the considerations which may have moved the trial court to its conclusion.” (Davey v. 

Southern Pacific Co. (1897) 116 Cal. 325, 329.) We must affirm the trial court’s ruling if 

there is any basis in the record for doing so. (Maryland Casualty Co. v. Reeder (1990) 

221 Cal.App.3d 961, 966-967.) We do so here.

DISPOSITION

The judgment is affirmed. Each party shall bear its own costs on appeal.

SMITH, J.

WE CONCUR:

DETJEN, Acting P.J.

DESANTOS, J.