Filed 6/1/15 Pasti v. Darakjian CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ROSE SUSAN PASTI,

Plaintiff and Appellant,

v.

HRAIR E. DARAKJIAN et al.,

Defendants and Respondents.

 B253259

 (Los Angeles County

 Super. Ct. No. PC053260)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Elia Weinbach, Judge. Affirmed. 

Law Offices of Gabor Szabo and Gabor Szabo for Plaintiff and Appellant. 

La Follette, Johnson, De Haas, Fesler & Ames, Christopher P. Wend, Thien 

Nguyen and David J. Ozeran for Defendants and Respondents. 

_______________________________
2

Summary judgment was entered in favor of defendants and respondents Hrair E. 

Darakjian, M.D., and Mid-Valley Orthopedic Specialists, Inc. (hereafter collectively 

Darakjian) in a medical malpractice action. Plaintiff Rose Pasti appealed. We affirm the 

summary judgment and an order denying section Code of Civil Procedure section 4731

relief. 

FACTS

Background

On April 1, 2011, then 83-year-old Pasti fell and injured her wrist. The same day, 

Pasti received emergency medical treatment for her wrist injury at Providence Tarzana 

Hospital. Upon being discharged, she was referred to Darakjian, an orthopedic surgeon. 

On April 5, 2011, Pasti went to Darakjian’s office. In a typed “Orthopedic 

Evaluation” report prepared contemporaneously with the visit, Darakjian recorded the 

following information and impressions: 

“Surgery can restore better alignment, although normal function is 

not anticipated, even with surgery. Restriction in the range of motion can 

be present with or without surgery. Surgery has the additional risk of 

vascular injury, nerve injury to the median nerve and tendon injury that can 

affect movement of the fingers. Additional surgery may become necessary 

if there is a tendon injury or for hardware removal. Due to her age, the 

bones are soft and the risks of complications and failure of the surgery are 

much higher. A lengthy discussion was held with the patient about the 

risks and complications. The patient is adamant about not having any 

surgery. She understands that the fracture will heal, however, a deformity 

will persist in the wrist without surgery. She agrees to have the cast 

treatment.”2 

 

1 All further undesignated section references are to the Code of Civil Procedure. 

2

There is conflicting evidence in the record as to how much of the information 

recorded in Darakjian’s Orthopedic Evaluation report was actually relayed to Pasti by 
3

All of the following facts are undisputed: Darakjian put a cast on Pasti’s wrist 

during the visit on April 5, 2011. Pasti returned to Darakjian on April 13, April 21, and 

May 9, 2011. On the May 9 visit, Darakjian removed the cast from Pasti’s wrist, applied 

a splint, and referred Pasti to physical therapy. Pasti never returned to Darakjian. 

On February 6, 2012, Eli T. Ziv, M.D., performed surgery on Pasti’s wrist. 

The Litigation

In June 2012, Pasti filed a complaint for medical malpractice against Darakjian. 

Pasti’s complaint alleged that Darakjian acted below the standard of care in that he 

(1) “failed to properly diagnose the seriousness of [Pasti’s] injuries;” (2) “failed to realize 

that only surgery could repair the fractures;” (3) “failed to perform the surgery;” and 

(4) “failed to properly align the fractured bones before he applied the cast.” Pasti alleged 

that Darakjian’s errors and omissions caused her to suffer “one year of extreme 

pain . . . until another surgeon performed the needed surgery, which should have been 

performed by [Darakjian].” Pasti did not allege a cause of action for lack of informed 

consent, nor did her complaint allege any facts regarding a lack of informed consent. 

Darakjian filed a motion for summary judgment (MSJ). The MSJ was supported 

by the declaration of a medical expert, George Macer, M.D., who opined that the medical 

treatment provided by Darakjian to Pasti complied with the standard of care. Dr. Macer

stated that Darakjian “acted appropriately” by treating Pasti “conservatively,” explaining 

that “placing a cast is standard with fractures of the radius, especially in older patients 

who do not want surgery.” As summarized by Dr. Mercer: “It is my medical opinion 

that to a reasonable degree of medical probability, nothing [Darakjian] did or did not do 

caused [Pasti’s] malunion, or the need to undergo surgery.” 

 

Darakjian. At her deposition, Pasti testified that Darakjian told her little more during 

their initial visit than that a cast was “just as good as” surgery for her. Further, Pasti

denied she told Darakjian that she was opposed to having surgery. 
4

Pasti filed an opposition to Darakjian’s MSJ supported by a declaration from a 

medical expert, Bernard Diamond, M.D., who faulted Pasti’s medical treatment. 

As summarized by Dr. Diamond: “[A] closed reduction to . . . Pasti’s comminuted 

displaced fracture was not carried out prior to placing a cast on her wrist, which resulted 

in the malunion of the fraction of the distal radius and ulna.”3 

In reply papers, Darakjian objected to Dr. Diamond’s declaration, asserting his 

opinions lacked foundation because his declaration did not show that the doctor had 

reviewed any of Pasti’s medical records, including any records from Tarzana Hospital, 

Dr. Ziv, or Darakjian’s office. 

The parties argued the merits of the MSJ to the trial court. The court’s written 

tentative ruling was to grant the MSJ because the declaration of Pasti’s expert, 

Dr. Diamond, lacked a proper foundation as argued in Darakjian’s reply papers. During 

argument, a lawyer appearing on behalf of the law office representing Pasti responded to 

the issue as follows: 

“It’s no secret that experts’ declarations are at least in part drafted by 

counsel for the parties. And in this case we have drafted the declaration of 

our expert, Dr. Diamond, and, admittedly, we did not do a very good job in 

conveying to the court exactly what information Dr. Diamond relied on in

forming his opinion.

“For that, counsel is prepared to file a 473 motion because it would 

be unjust to deny plaintiff’s day in court because of the shortness of Dr. 

Diamond’s declaration. It was only two pages, and I think it didn’t clearly 

convey exactly what he did rely on.

“Dr. Diamond’s declaration does state that he relied on the x-rays. 

There is really nothing else in her medical record other than her x-rays and 

 

3

Further, as noted above Pasti, disputed the extent to which Darakjian explained her 

surgery versus cast treatment options. This evidence, of course, had no relevance 

inasmuch as Pasti’s complaint did not allege any claim based on a theory of a lack of 

informed consent for the cast. 
5

defendant doctor’s self-serving orthopedic evaluation reports. . . . [T]hose 

reports, the authenticity of those reports, are hotly contested and there is a 

direct factual issue as to their correctness or actually what was said to the 

patient, plaintiff, by the defendant doctor.

“She denies that he explained to her the surgery options. She claims 

that he talked her out of surgery. And for defendant’s expert to rely on 

those reports I think it’s really for the jury to decide the believability of 

defendant’s experts.

“But Dr. Diamond’s very short declaration does refer to the 

numerous x-rays and from those x-rays it was obvious that something was 

not done.

“This is a case of omission. This is a case where defendant doctor 

failed to operate when he should have. There is [sic] no detailed operative 

reports with which to review for our expert. There is really just the x-rays 

only and defendant doctor’s orthopedic evaluations.

“And Dr. Diamond’s declaration does refer to the standard of care in 

the community in paragraph 8 when he states that quote unquote, closed 

reduction of Ms. Pasti’s convoluted displaced fracture distal radius and ulna 

should have been carried out as a standard and ordinary procedure prior to 

placing a cast on her right wrist ulna or a distal radial osteotomy should 

have been performed that is the brief explanation of what the standard of 

care would have been. 

“Alternatively defendants themselves asked for an opportunity to 

depose Dr. Diamond, and we’re willing to offer up Dr. Diamond for a 

deposition if your honor would suspend his ruling so that Dr. Diamond can 

better explain the basis of his medical opinion.

“And in the event Dr. Diamond’s testimony is ignored, then I guess 

we only have Dr. Macer the defendant’s expert opinion. However, it 

should be up to the jury to decide the believability of Dr. Macer. 
6

Dr. Macer’s declaration verbatim repeats what is contained in the 

orthopedic evaluation reports of defendant doctor. I think the jury can 

decide if Dr. Macer is believable. I think it would just be completely unfair 

to prevent plaintiff from having her case heard by a jury.” 

At the conclusion the hearing, the trial court granted Darakjian’s MSJ. 

Citing Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3rd 696, 704, the 

court ruled that Pasti failed to meet her burden of establishing a dispute by way of expert 

evidence showing that Darakjian’s conduct failed to comply with the standard of care and 

caused or contributed to Pasti’s injuries to a reasonable degree of medical probability. 

In making its ruling, the court sustained three of four of Darakjian’s evidentiary 

objections to Dr. Diamond’s declaration, including his ultimate opinion regarding 

negligence, finding that Dr. Diamond’s statements lacked a proper foundation. The trial 

court specifically noted: “The declaration lacks foundation as it does not recite the 

records . . . supporting Dr. Diamond’s opinion.” The trial court signed and entered a 

judgment on MSJ in favor of Darakjian. 

From this point moving forward, specific dates become important as they affect 

the issue of timeliness of the current appeal. On August 16, 2013, Darakjian served Pasti

with notice of entry of the summary judgment entered on July 29, 2013. The service of 

the notice of entry of the judgment triggered the running of the ordinary 60 day period for 

filing a notice of appeal (see Cal. Rules of Court, rule 8.104), subject to an extension of 

time, if any applied (see Cal. Rules of Court, rule 8.108). Thus, a notice of appeal had to 

be filed by October 15, 2013.

On September 30, 2013, Pasti filed a motion to vacate the trial court’s “order” 

granting Darakjian’s MSJ pursuant to section 473. Pasti claimed there had been a

“clerical-like error” in preparing Dr. Diamond’s declaration for the opposition to the 

MSJ. Pasti claimed that her attorney handwrote notes for Dr. Diamond’s declaration on 

the front and back sides of pages on a yellow legal pad. But, when her attorney’s 

secretary typed up the doctor’s declaration from the attorney’s handwritten notes, she 
7

failed to notice the material on the back side of one of the pages, and inadvertently did 

not include that material in the doctor’s declaration. This version of events was 

supported by a declaration from Pasti’s attorney who stated: “[I] simply was not aware 

of the fact that Dr. Diamond’s declaration was missing a material portion of [my] notes, 

prior to it being forwarded to the doctor for his signature and prior to submitting it to the 

court. [I] mistakenly believed that all of [my] notes were typed and that the declaration 

of Dr. Diamond was complete.” A declaration from the attorney’s secretary 

corresponded with the attorney’s version of events. Neither of the two declarations 

included information describing the actual content of the materials on the back side of the 

legal pad page which purportedly had inadvertently not been transcribed.4

On November 8, 2013, the trial court denied Pasti’s motion to vacate the summary 

judgment pursuant to section 473. The court’s signed order indicates it construed the 

motion as seeking relief pursuant to both the discretionary “excusable neglect” and the 

mandatory “attorney fault” provisions of section 473, subdivision (b). 

With respect to mandatory relief, the trial court’s order reads: “The court cannot 

grant [mandatory] relief . . . based on attorney [fault] because an order granting summary 

judgment is not a ‘dismissal’ for purposes of the statute.” The court cited English v. 

IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 149. 

As to discretionary relief, the court’s order stated: “Plaintiff is not entitled to 

discretionary relief . . . because counsel’s inadvertence and error in filing inadequate 

opposition papers does not constitute circumstances equivalent to a default – such as 

where a party completely fails to file an opposition. (Garcia v. Hejmadi [(1997)] 58 

 

4 On August 14, 2013, Pasti had filed a motion for “reconsideration and revocation” 

of the trial court’s order granting Darakjian’s MSJ. The motion was based on section 

1008, and argued there were “new facts” for the trial court’s consideration. The motion 

claimed there was a “transcription” error in preparing Dr. Diamond’s declaration for the 

opposition to the MSJ. Basically, the reconsideration motion largely mirrored the later 

motion to vacate pursuant to section 473. The trial court denied the motion for 

reconsideration on the ground that it was procedurally invalid as it was filed after the 

judgment had already been entered. The court’s ruling was correct, and Pasti does not 

challenge on appeal the ruling on her motion for reconsideration. 
8

Cal.App.4th 674, 683 [(Garcia)] . . . . [¶] Additionally, the error cited here, counsel’s 

failure to realize that his secretary failed to transcribe all of his notes is not ‘excusable.’ 

(Garcia at 682.) [¶] [Finally,] Plaintiff has not demonstrated that judgment was entered 

because of counsel’s error. Plaintiff does not state what was omitted from the original 

declaration. Counsel admits that he subsequently gave additional documents to 

Dr. Diamond . . . who was then able to render a more informed opinion. The error 

appears to be a failure to give the expert all relevant documents.” 

On December 3, 2013, Pasti filed a notice of appeal from the summary judgment 

entered on July 29, 2013, and from the order denying her motion for relief pursuant to 

section 473 entered on November 8, 2013. 

DISCUSSION

I. The Appeal is Timely as to the Summary Judgment

Respondent Darakjian contends Pasti’s notice of appeal from the summary 

judgment was untimely and we lack appellate jurisdiction to entertain her challenge to the 

summary judgment. We disagree. 

The timely filing of a notice of appeal is a prerequisite to appellate court

jurisdiction. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. 

Agency, Inc. (1997) 15 Cal.4th 51, 56.) Where, as in Pasti’s current case, a party serves a 

“notice of entry” of a judgment, the time to file a notice of appeal ordinarily is 60 days. 

(Cal. Rules of Court, rule 8.104(a)(1).) Darakjian served a notice of entry of judgment on 

August 16, 2013, triggering the 60-day time period for filing a notice of appeal. 

Thus, the time to file a notice of appeal expired around mid-October 2013. Pasti filed her 

notice of appeal on December 3, 2013. Accordingly, unless an extension of time to file a 

notice of appeal applies for purposes of the present appeal, Pasti filed her notice of appeal 

too late. 

Under California Rules of Court, rule 8.108(c), the filing of a “valid motion” 

to vacate a judgment within the 60 day time period for filing a notice of appeal will 

extend the ordinary 60 day appeal deadline until the earliest of the following three dates: 

(1) 30 days after the order is denied; (2) 90 days after the date the motion to vacate was 
9

filed; or (3) 180 days after the actual entry of judgment. Still, there is no extension of the 

time to file a notice of appeal under rule 8.108(c) unless a motion to vacate a judgment 

was a “valid motion” to vacate. A “valid motion to vacate” a judgment within the 

parameters of rule 8.108(c) means a motion that is “procedurally proper” and based on a 

“recognized ground” for vacating a judgment, for example, a statutory motion under 

section 473 or section 663. (See Eisenberg, Horvitz & Weiner, Cal. Practice Guide: 

Civil Appeals and Writs (Rutter 2014) Notice of Appeal, § 3:82, pp. 3-39 to 3-40, and 

authorities cited therein.) It does not mean a “substantively meritorious motion” to 

vacate. 

Here, Pasti filed her motion to vacate the summary judgment on September 30, 

2013, well within the ordinary 60 day period for filing a notice of appeal. The motion to 

vacate was timely, hence, procedurally proper, and it was based upon a recognized 

statutory ground for vacating a judgment, to wit, section 473. The trial court denied 

Pasti’s motion to vacate on November 8, 2013, triggering the 30 day extension period for 

filing her notice of appeal. (Cal. Rules of Court, rule 8.108(c).) Pasti filed her notice of 

appeal on December 3, 2013, within the 30 day extension period. (Ibid.) 

Darakjian has presented extensive and well-crafted arguments as to why Pasti did 

not file a valid motion to vacate the judgment. He argues we should not find an extension 

of the time to file a notice of appeal. We are not persuaded. We are satisfied that we 

have appellate jurisdiction because we find that Pasti filed a valid motion to vacate the

summary judgment. The motion was procedurally proper in that it was filed within the 

ordinary 60 day period for filing a notice of appeal, and it was based on a recognized 

ground, namely, section 473. 

II. The Trial Court Did Not Err in Granting Darakjian’s Motion for Summary 

Judgment

Pasti contends the summary judgment in favor of Darakjian must be reversed 

because the trial erred in not considering his doctor’s declaration in support of her 

opposition to Darakjian’s MSJ. Pasti argues that her expert’s declaration was sufficient 

to defeat the summary judgment motion. We find no error. 
10

“We review the trial court’s summary judgment rulings de novo, viewing the 

evidence in a light favorable to the plaintiff as the losing party, liberally construing the 

plaintiff’s evidentiary submission while strictly scrutinizing the defendant’s own showing 

and resolving any evidentiary doubts or ambiguities in the plaintiff’s favor.” (Weber v. 

John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438 (Weber).) A motion for summary 

judgment must be granted “if all the papers submitted show that there is no triable issue 

as to any material fact and . . . the moving party is entitled to a judgment as a matter of 

law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant has met his burden of showing 

that a cause of action has no merit if he has shown that there is a complete defense to that 

cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff 

to show a triable issue of one or more material facts exists as to that cause of action. 

(Id., subd. (p)(2); see Weber, supra, 143 Cal.App.4th at p. 1437.) “In determining 

whether the papers show that there is no triable issue as to any material fact the court 

shall consider all of the evidence set forth in the papers . . . and all inferences reasonably 

deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) In some 

instances, however, “evidence may be so lacking in probative value that it fails to raise 

any triable issue.” (Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. 

Co. (1988) 199 Cal.App.3d 791, 795.)

The real issue here is whether the trial court erred in excluding an expert witness 

declaration. Recently, in the context of a pretrial evidentiary motion, the California 

Supreme Court held that, “[e]xcept to the extent the trial court bases its ruling on a 

conclusion of law . . . , its ruling excluding . . . expert testimony [is reviewed] for abuse 

of discretion.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 

Cal.4th 747, 773.) The appropriate standard of review for summary judgment evidentiary 

rulings is an issue the California Supreme Court has, so far, declined to address. (See 

Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [“Thus, we need not decide generally 

whether a trial court’s rulings on evidentiary objections based on papers alone in 

summary judgment proceedings are reviewed for abuse of discretion or reviewed de 

novo.”].) The majority of California appellate courts, however, including this one, have 
11

held that summary judgment evidentiary rulings, like other evidentiary rulings, are 

reviewed for abuse of discretion. (See e.g., Garrett v. Howmedica Osteonics Corp. (2013)

214 Cal.App.4th 181; Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 

1427; Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335; 

Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Walker v. Countrywide 

Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169; Jackson v. County of Los Angeles

(1997) 60 Cal.App.4th 171, 192, fn. 15.)

It has long been settled that the standard of care against which the acts of a

physician are measured is an issue peculiarly within the knowledge of experts, that can 

only be proved by expert testimony, unless the conduct required by the particular 

circumstances is within the common knowledge of laypersons. (See Landeros v. Flood

(1976) 17 Cal.3d 399, 410.) Once Darakjian submitted an expert declaration refuting 

Pasti’s malpractice claim, the burden shifted to Pasti to submit an expert declaration 

establishing the existence of a triable issue of fact. As the Supreme Court stated in 

reviewing a summary judgment in Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 

93: “[I]t is settled that an opponent’s failure to file counteraffidavits admits the truth of 

the movant’s affidavit.” (Id. at p. 107.) 

Here, the declaration of Darakjian’s expert, Dr. Macer, relying on Pasti’s medical 

records, established that the care rendered by Darakjian met the standard of care, and that 

Darakjian’s care and treatment did not cause Pasti to suffer any injury. In her opposition, 

Pasti submitted the declaration of Dr. Diamond, who expressed the opinion that Pasti 

“received substandard care,” explaining that “closed reduction of [her] comminuted 

displaced fracture distal radius ulna should have been carried out as a standard and 

ordinary procedure, prior to placing a cast on her right wrist, or a distal radial osteotomy 

should have been performed.” At first blush, it appears that the papers submitted by the 

parties for and against Darakjian’s MSJ showed the existence of a triable issue of fact on 

a material issue, i.e., whether or not Darakjian’s treatment fell below the standard of care. 

(See Landeros v. Flood, supra, 17 Cal.3d at p. 410.) 
12

On closer examination, however, the blush pales. The ultimate opinion offered in 

Dr. Diamond’s declaration was not shown to be based upon his review of any of Pasti’s 

medical records. Dr. Diamond did not state that he had reviewed any records from 

Tarzana Hospital, where Pasti was treated on the day she fell, or any records from 

Darakjian’s office, or any records from any other medical provider. The only materials 

that Dr. Diamond explicitly referenced in his declaration were an x-ray taken on April 11, 

2011 and a “multitude of x-rays taken subsequently,” but he did not state whether he

personally reviewed the noted x-rays, or relied on reports about these x-rays prepared by 

others. In fact, Dr. Diamond’s declaration never truly states that he concluded that 

Darakjian had done something wrong. Rather, Dr. Diamond opined only that he 

“believes” that Pasti “received substandard care as closed reduction of [her] comminuted

displaced fracture should have been carried out . . . prior to placing a cast on her right 

wrist, or a distal radial osteotomy should have been performed.” 

Basically, Dr. Diamond offered an opinion concerning what he “believes” about 

the nature of care that Pasti “should have received,” but he never actually stated that it 

had been Darakjian who had failed to act properly. Further, Dr. Diamond never stated 

that his opinions were based on a reasonable degree of medical probability. Having 

failed to lay a proper evidentiary foundation for his opinion, Dr. Diamond’s opinion was 

inadmissible, and properly disregarded by the trial court. 

In Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (Garibay), Division Three of 

our Court held that an expert’s declaration in support of a defendant doctor’s MSJ did not 

meet the initial burden of producing evidence where the expert based his opinion on facts 

derived from his review of hospital and medical records which were not properly 

authenticated and not properly admitted into evidence, either separately or as a part of the 

expert’s declaration. (Id. at pp. 737, 741-743.) As stated by Division Three: 

“[The expert] had no personal knowledge of the underlying facts of the case, and 

attempted to testify to facts derived from medical and hospital records which were not 

properly before the court. Therefore his declaration of alleged facts had no evidentiary 

foundation. An expert’s opinion based on assumptions of fact without evidentiary 
13

support has no evidentiary value.” (Id. at p. 743.) In Barragan v. Lopez (2007) 

156 Cal.App.4th 997, the Court of Appeal similarly held that an expert’s declaration 

submitted by a plaintiff in opposition to a defendant doctor’s MSJ did not show the 

existence of a triable issue of fact because the facts did not support the expert’s opinion. 

(Id. at p. 1007.) 

Here, we have an analogous situation. Indeed, there existed even less foundation 

for the plaintiffs expert’s opinion than that of the expert in the Garibay case because 

Dr. Diamond did not even identify which records he reviewed, if any, in formulating his 

opinion. He not only failed to state that he reviewed the hospital records and records 

from Darakjian and Dr. Ziv. Dr. Diamond assigned fault for a failure to perform a closed 

reduction procedure prior to placing the cast, but Darakjian’s records stated that Pasti’s 

fracture “was reduced and the wrist splinted” at Tarzana Hospital. In addition, 

Dr. Diamond stated in his consultation report: “It does not sound as though a closed

reduction was carried out.” This suggests that Dr. Diamond himself was uncertain about 

what had occurred during Pasti’s treatment. We agree with the trial court’s observation 

in granting the MSJ: “Dr. Diamond’s consultation report attached to [his] declaration 

supports that his opinion is based on speculation as to what care and treatment actually 

occurred prior to his consultation with and examination of [Pasti].” The published cases 

support the proposition that the value of an expert’s evidence rests not so much in the 

ultimate conclusion expressed, “‘but in the factors considered and the reasoning 

employed.’” (See Bay Area Rapid Transit Dist. v. Superior Court (1996) 46 Cal.App.4th 

476, 482.) Here, the expert’s declaration was not shown to be based on facts and 

reasoning based on the facts. 

Pasti cites Powell v. Kleinman (2007) 151 Cal.App.4th 112 (Powell), Kelley v. 

Trunk (1998) 66 Cal.App.4th 519 (Kelley), and Hanson v. Grode (1999) 76 Cal.App.4th 

601 (Hanson), in support of the proposition that an expert’s evidence offered by a party 

opposing an MSJ may be given more lenient consideration. Powell, Kelley and Hanson

all discuss the well-settled rule that, in considering the declarations of the parties’ experts 

in the context of a MSJ, a court must liberally construe a declaration of an opposing 
14

plaintiff’s expert, and resolve any doubts as to the propriety of granting the motion in 

favor of the plaintiff. (See, e.g., Powell, supra, 151 Cal.App.4th at p. 125; and see also 

D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Further, an opposing 

plaintiff is entitled to all favorable inferences that reasonably may derive from his or her 

expert’s evidence. (Powell, supra, 151 Cal.App.4th at p. 129; and see also Hanson, 

supra, 76 Cal.App.4th at p. 607.) 

We do not disagree with, nor discount, these well-settled rules applicable to a 

court’s examination of an MSJ; such rules are, of course, correct in the abstract. The 

problem for Pasti, however, is not a failure to give a liberal reading of her expert’s 

evidence; the problem is that her expert’s evidence was inadmissible as it lacked a 

foundation. Where, as in the current case, an expert fails to provide evidence showing 

the existence of a triable issue of fact, a court may grant a MSJ. The rule of strict and 

liberal construction of the parties’ evidence in the context of a MSJ “does not mean that 

courts may relax the rules of evidence in determining the admissibility of an opposing 

declaration. Only admissible evidence is liberally construed in deciding whether there is 

a triable issue.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) 

This brings us to the value of Pasti’s deposition testimony that Darakjian never 

offered her any information regarding surgery other than to say that a cast was “just as 

good” as surgery for her, and that she did not tell Darakjian that she was opposed to 

having surgery. We disagree with Pasti that her deposition testimony was sufficient to 

defeat Darakjian’s MSJ. First, Pasti did not allege a cause of action for lack of informed 

consent, nor allege facts within her negligence claim to show that she was alleging lack 

of consent as a theory of liability. The issues for an MSJ are, or course, “‘framed by the 

pleadings.’” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.) As Pasti’s 

complaint only faulted the manner of actual treatment, a failure to discuss the pros and 

cons of surgery versus a cast, accepting this in fact occurred, is irrelevant in light of the 

evidence in Darakjian’s MSJ showing that he satisfied the standard of care in treating 

Pasti conservatively. To the extent surgery was an option, Darakjian satisfied the

standard of care in opting to go the conservative route in treating Pasti without surgery. 
15

Absent an admissible expert opinion to the contrary, Pasti’s deposition testimony did not 

raise a triable issue of material fact. 

III. The Trial Court Did Not Err in Denying the Motion to Vacate

the Judgment Pursuant to Section 473

Pasti next contends the trial court erred as a matter of statutory interpretation and 

application, and that it abused its discretion, in denying her section 473 motion to vacate 

the summary judgment. We find no error. 

1. Mandatory Relief Based on Attorney Fault

Section 473’s mandatory relief provision requires a court to vacate a “(1) resulting 

default entered by the clerk against his or her client, and which will result in entry of a 

default judgment, or (2) resulting default judgment or dismissal entered against his or her 

client,” whenever a timely application for such request is “accompanied by an attorney’s 

sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . .” 

(§ 473, subd. (b).) The only circumstance in which mandatory relief may be denied is 

when “the court finds that the default or dismissal was not in fact caused by the attorney’s 

mistake, inadvertence, surprise, or neglect.” (Ibid.) One issue directly presented by 

Pasti’s current appeal is whether section 473’s mandatory relief provision applies to a 

summary judgment motion. That is, may section 473’s “default or dismissal” language 

be interpreted to include the situation where a party lost a MSJ due to inadequate 

opposing papers. 

In English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th 130, the Third 

District Court of Appeal held that the mandatory relief provision of section 473 does not 

apply to a summary judgment proceeding because entry of a summary judgment does not

constitute a default judgment or a dismissal. (Id. at pp. 143-149.) “By its very nature, a

summary judgment is distinct from both a ‘default’ and a ‘default judgment’ as those 

terms are used in section 473(b).” (Id. at p. 144.) “Given the limited meaning of the 

word ‘dismissal’ as used in the mandatory [relief] provision of section 473(b), a summary 

judgment in favor of a defendant is not a ‘dismissal.’” (Id. at 148.) 
16

In Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare 

System (1997) 57 Cal.App.4th 1078, in reviewing a dismissal for failure to serve a 

complaint within three years (§§ 583.210, 583.250), the Third District Court of Appeal 

held that the mandatory relief provision of section 473 should be “limited to those 

dismissals which are the procedural equivalent of defaults –– i.e., those which occur

because the plaintiff’s attorney has failed to oppose a dismissal motion.” (Id. at p. 1082.) 

In Gotschall v. Daley (2002) 96 Cal.App.4th 479, the Third District Court of 

Appeal held that the mandatory relief prescribed under section 473 is intended to allow 

relief for a failure to appear, but not for submission of deficient opposition papers. 

As stated in Gotschall: “[T]he mandatory [relief] provision . . . applies only to those 

situations in which the mistake causes a failure to oppose a dismissal motion, such as 

failing to appear for the hearing on the motion.” (Id. at p. 484.) 

Pasti relies on Avila v. Chua (1997) 57 Cal.App.4th 860 (Avila) for a different 

result. In Avila, the plaintiff submitted an untimely opposition to a MSJ. The trial court 

refused to consider the late opposition and granted the motion, essentially finding that it 

was unopposed. The trial court thereafter denied a motion for relief under section 473’s 

mandatory relief provision for attorney fault. The trial court denied the motion for relief. 

On appeal, Division Five of our court held that the trial court erred in denying the motion 

for relief under the mandatory relief provision of section 473, reasoning that the striking 

of the late-filed opposition papers to the MSJ was “directly analogous to a default.” 

(Id. at p. 868.) In reaching this result Division Five distinguished Heuns v. Tatum (1997) 

52 Cal.App.4th 259 (Heuns). 

In Heuns, a party sought to avoid a settlement agreement based on a claim of

attorney fault. In finding section 473 did not apply, the Third District Court of Appeal 

concluded that section 473’s mandatory relief provision was not intended to be “used 

indiscriminately by . . . attorneys as a ‘perfect escape hatch.’” (Heuns, at pp. 263-264.) 

In so holding, the Court of Appeal reasoning that finding section 473 applied would 

allow a settlement agreement to be set aside even where there were no grounds for 

rescission, and would seriously intrude into the law of contracts. Further, creating new 
17

contract rules under section 473 would undermine the strong public policy in favor of 

settlements. (Id. at pp. 264-265.) 

We find Pasti’s current case is not akin to Avila. In contrast to what occurred in 

Avila, Darakjian’s MSJ in Pasti’s current case was decided based on the moving and the

opposing papers. Here, there was no failure to file a timely opposition resulting in the 

opposition being stricken, and the motion being deemed, in essence, unopposed. To the 

contrary, Pasti filed opposition to the motion, which had been reviewed; the court ruled 

the opposition to be deficient to support denial of Darakjian’s MSJ. Unlike Avila, the 

situation here is not analogous to default; it is a case of filing a losing opposition. The 

mandatory relief provision of section 473 is not meant to give counsel two opportunities 

to oppose a MSJ. 

Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350 (Ambrose) 

is more aptly analogous to Pasti’s current case. In Ambrose, a plaintiff lost a summary 

judgment motion and then sought relief under the mandatory relief provision of section 

473 on the grounds that counsel was at fault for not requesting a continuance of the 

hearing for further preparation. Division Two of the Fourth District Court of Appeal held 

that this did not fall under the mandatory relief provision, distinguishing it from Avila, 

supra, because substantive opposition was filed.

More recently, Division Three of our court ruled that the mandatory relief 

provision of section 473 does not apply to summary judgments and that it “should be 

limited to the narrow class of cases in which a default judgment or a dismissal has been 

entered.” (Las Vegas Land & Development Co, LLC v. Wilkie Way, LLC (2013) 219 Cal. 

App.4th 1086, 1092.) 

In Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, the Fifth 

District Court of Appeal also rejected Avila, and held that “the mandatory relief provision 

of section 473(b) does not include relief for mistakes an attorney makes in opposing, or 

not opposing, a summary judgment motion (or not timely requesting a continuance of a 

hearing on a summary judgment motion).” (Id. at pp. 225-229.) In Huh v. Wang (2007) 

158 Cal.App.4th 1406, the Sixth District Court of Appeal also expressed similar 
18

sentiments. (Id. at p. 1416). And, finally, we also expressed similar sentiments in Prieto 

v. Loyola Marymount University (2005) 132 Cal App.4th 290, 295.) 

Furthermore, even were we to conclude that the mandatory relief provision of 

section 473 applied in Pasti’s current case, reversal is not required where a court finds an 

attorney’s fault did not “actually cause” the ruling that was entered. As stated in section 

473, the mandatory relief provision does not apply when “the court finds that the default

or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or 

neglect.”

In Pasti’s case, the trial court made an express finding that Pasti did not show that 

attorney fault caused the court to grant Darakjian’s MSJ. Instead, the trial court ruled 

Pasti’s 473 motion did not show what material had been omitted from the opposition

papers. In other words, Pasti failed to show causation because it could not be determined 

that absent her attorney’s omission, it would have made a difference. Pasti did not show 

that one page of multiple pages of notes having not been transcribed caused her to lose 

the MSJ. As the trial court stated: “Plaintiff does not state what was omitted form the 

original declaration. Counsel admits that he subsequently gave additional documents to 

Dr. Diamond . . . who was then able to render a more informed opinion. The error 

appears to be the failure to give the expert all relevant documents.”

2. Discretionary Relief Based on Excusable Neglect

Section 473’s discretionary relief provision permits a party to be relieved from the

consequences of mistake, inadvertence, surprise, or neglect. Under this provision, a court

has discretion, upon any terms as may be just, relieve a party from a “proceeding” taken

against the party through his or her mistake, inadvertence, surprise, or excusable neglect. 

Thus, discretionary relief is allowed in much broader contexts than the mandatory relief 

provision for attorney fault. “‘“Anything done from the commencement to the 

termination is a proceeding.”’ [Citation.]” (Lorenz v. Commercial Acceptance Ins. Co. 

(1995) 40 Cal.App.4th 981, 989.) Still, a party must make a showing of the claimed 

mistake, inadvertence, surprise, or excusable neglect. (Ibid.) The court then considers

the facts and circumstances of the case to determine whether the reasons given for 
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seeking relief are satisfactory. (Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196.) 

The court may grant discretionary relief under section 473 when it is satisfied that a 

litigant has shown that his or her conduct was “such as might have been the act of a 

reasonably prudent person under the same circumstances.” (Hearn v. Howard (2009) 

177 Cal.App.4th 1193, 1206.) 

On appeal, a trial court’s ruling on a motion for discretionary relief under section 

473 shall not be disturbed unless the appellant shows of an abuse of discretion. 

(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258.) A trial 

court will be said to have abused its judicial discretion when its decision was arbitrary, 

capricious or beyond the bounds of reason in light of all of the circumstances. (See, e.g., 

Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893.) 

In Pasti’s case, the trial court cited Garcia, supra, 58 Cal.App.4th 674 in support 

of its determination that there was no “excusable” neglect shown in connection with 

opposing Darakjian’s MSJ. In Garcia, the Court of Appeal found that the a failure to

present certain evidence and argument in opposition to a MSJ was not excusable because 

the facts and law were known at all times to the opposing party (or, to be more accurate, 

to the party’s lawyer). (Id. at p. 684.) This result was in accord with the principle that 

section 473 “cannot be used to remedy attorney mistakes, such as the failure to provide 

sufficient evidence in opposition to a summary judgment motion.” (Wiz Technology, Inc. 

v. Coopers v. Lybrand (2003) 106 Cal.App.4th 1, 17; see also Generale Bank Nederland 

v. Eyes of the Beholder, Ltd. (1998) 61 Cal.App.4th 1384, 1402 [counsel’s “failure to 

discharge routine professional duties” or “properly prepare for the hearing” do not 

constitute excusable neglect].) 

We find no error in the trial court’s conclusion that the “transcription” error that 

was asserted in Pasti’s case do not fit within the framework of mistake, inadvertence, 

surprise, or excusable neglect contemplated by section 473 for discretionary relief from a 

proceeding in the course of litigation. We fully agree that a secretary’s mistranscription 

is something which can occur in the heat and press of litigation, but, here, there was a

further error by counsel, of a different nature, which does not fall within the ambit of 
20

section 473’s discretionary relief provision. The failure here is not the type of error 

“such as might have been the act of a reasonably prudent person under the same 

circumstances.” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1206.) We cannot say 

that the trial court abused its discretion; its decision was not beyond the bounds of reason. 

DISPOSITION

The summary judgment entered on July 29, 2013 is affirmed. The order denying 

the motion for relief pursuant to section 473 entered on November 8, 2013, is affirmed. 

Each party to bear its own costs on appeal.

BIGELOW, P.J.

We concur:

FLIER, J.

GRIMES, J.