Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. TC020264, Andrew C. Kauffman, Judge.
David M. Van Sickle for Plaintiff and Appellant.
Fonda & Fraser and Peter M. Fonda for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Plaintiff and appellant Timothy James (plaintiff) appeals from a judgment entered after the issuance of an order granting summary judgment in favor of defendant and respondent Little Company of Mary Hospital (the Hospital). Plaintiff contends that the trial court erred in granting summary judgment based on plaintiff’s failure to file a separate statement that complied with the requirements of Code of Civil Procedure section 437c, subdivision (b)(3). According to plaintiff, the Hospital’s evidence in support of its motion lacked proper foundation, and therefore the Hospital failed to make the required prima facie showing of entitlement to judgment as a matter of law. The Hospital asserts that because the record on appeal is inadequate, we should affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We hold that because the Hospital made the required prima facie showing in support of its summary judgment motion, the trial court did not abuse its discretion in granting the motion based on plaintiff’s failure to file a separate statement in compliance with the requirements of section 437c, subdivision (b)(3). And, in any event, the record appears inadequate such that we have no basis to reverse the judgment. We therefore affirm the judgment.
PROCEDURAL BACKGROUND
Plaintiff sued, inter alia, the Hospital claiming personal injuries resulting from negligent medical treatment. His fifth amended complaint asserted claims for negligence, premises liability, and products liability against the Hospital. The Hospital filed demurrers to the premises liability and products liability claims that the trial court sustained without leave to amend.
In the trial court, plaintiff appeared in pro per.
The Hospital then filed a motion for summary judgment as to the remaining negligence claim supported by the declaration of a physician expert board-certified in emergency medicine. Pursuant to plaintiff’s ex parte application, the trial court set a hearing on plaintiff’s motion to continue the hearing on the Hospital’s motion for summary judgment. The Hospital opposed the motion to continue, and, after hearing argument, the trial court denied the continuance.
Thereafter, plaintiff filed papers in opposition to the Hospital’s motion for summary judgment, including a declaration from a physician expert board-certified in emergency medicine. Plaintiff also filed a separate statement of undisputed material facts, but it was directed at a summary judgment motion filed by a codefendant and contained only 11 disputed facts, none of which addressed the 57 undisputed facts contained in the Hospital’s separate statement.
Plaintiff did not file any objections to the Hospital’s evidence in support of its summary judgment motion.
Codefendants Medline Industries, Inc. and Cardinal Health 110, Inc. also filed summary judgment motions that were heard the same day as the Hospital’s.
At the hearing on the Hospital’s summary judgment motion, the trial court noted that the Hospital had failed to submit the medical records upon which the Hospital’s expert had relied in reaching his opinion. The trial court also pointed out that plaintiff’s “separate statement [was] not adequate. It [did not] comply with the requirements of the Rules of Court.” But the trial court further explained that “[g]iven the opportunity, [plaintiff] probably could put together an appropriate separate statement.” Accordingly, the trial court continued the hearing on the Hospital’s summary judgment motion to allow the Hospital to submit the medical records upon which its expert had relied and to allow plaintiff to file a conforming separate statement.
The trial court cited to the decision in Garibay v. Hemmat (2008) 161 Cal.App.4th 735 which held that when a medical expert witness based his or her opinion on medical records, and those records were not submitted with the expert’s declaration in support of a summary judgment motion, the expert’s opinion lacked foundation and had no evidentiary value. (Id. at pp, 737, 743.)
At the initial hearing, the trial court granted the summary judgment motions of Medline Industries, Inc. and Cardinal Health 110, Inc.
Prior to the continued hearing on the Hospital’s summary judgment motion, plaintiff filed a separate statement as to the Hospital’s motion. This separate statement contained only seven purported disputed facts and did not specifically address the 57 undisputed facts asserted by the Hospital in support of its motion. The Hospital also apparently filed supplemental papers in support of its motion.
The case history in the record reflects the Hospital’s supplemental filings, but those documents are not in the record on appeal.
At the continued hearing on the Hospital’s motion for summary judgment, the trial court observed that both the Hospital and plaintiff had lodged with the court the medical records that their respective experts had reviewed in forming their opinions in compliance with the holding in Garibay v. Hemmat, supra, 161 Cal.App.4th 735. The trial court then stated, “[plaintiff], I told you the last time you were here that your separate statement did not comply with the Rules of Court of law. [¶] I gave you the opportunity to file a new and improved one that did comply, and you filed a purported separate statement, and it still didn’t comply. [¶] And there’s serious questions as to whether I can consider any evidence that you submitted if you haven’t complied with the rules as far as filing your separate statement. [¶]... So there is case law to the effect that, if a separate statement is not in compliance with the law, that it’s—there is no separate statement at all, and the motion should be granted.” Later in the hearing, the trial court reiterated that plaintiff’s separate statement failed to address any of the Hospital’s 57 undisputed facts and did not otherwise comply with section 437c. The trial court also found that the Hospital had made a sufficient initial showing of entitlement to summary judgment. After further colloquy, the trial court ruled on the Hospital’s objections to plaintiff’s evidence and granted the motion for summary judgment. The trial court thereafter entered judgment on the order granting summary judgment in favor of the Hospital.
The Hospital’s objections are not in the record on appeal.
DISCUSSION
A. Standard of Review
“We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing 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. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
B. Moving Party’s Initial Burden on Summary Judgment
Plaintiff argues that the trial court erred in granting summary judgment based on plaintiff’s failure to file a conforming separate statement because the Hospital failed to satisfy its initial burden of showing entitlement to judgment as a matter of law. According to plaintiff, the opinion of the Hospital’s physician expert—i.e., that none of the Hospital’s employee’s breached a duty of care to plaintiff—lacked the necessary foundation, such that the opinion could not support a prima facie showing that the Hospital was not liable on the negligence cause of action. In Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086, the court stated, “While subdivision (b) of section 437c allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.” (Italics added.) Our Supreme Court has described a moving defendant’s initial burden on summary judgment as the “burden of persuasion to show that there was no triable issue of material fact and that [the moving defendant was] entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 861.)
Here, the trial court noted on the record that the Hospital had provided the medical records upon which its physician expert had relied in forming his opinion that the Hospital did not breach any duty of care in connection with the services it provided to plaintiff. Nevertheless, because the expert’s declaration did not expressly reference those records, plaintiff contends that the opinions contained therein lacked foundation. But that argument is, in effect, an evidentiary objection to the expert’s declaration that was not raised in the trial court. Plaintiff therefore forfeited the argument that the opinion of the Hospital’s expert lacked foundation. (§ 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing [on a summary judgment motion] shall be deemed waived”].)
Based on our review of the record, we conclude that the Hospital made the requisite prima facie showing to meet its initial burden of persuasion on the summary judgment motion. The declaration of the Hospital’s physician expert established that the Hospital did not breach any duty of care owed to plaintiff, which showing, if properly supported by the underlying medical records (assuming, without deciding, that Garibay v. Hemmat, supra, 161 Cal.App.4th 735 should be followed), entitled the Hospital to judgment on the negligence claim as a matter of law. Although the decision in Garibay v. Hemmat, supra, 161 Cal.App.4th 735 required that the Hospital also submit the medical record upon which the expert’s opinion was based, the trial court noted on the record that those records had been submitted following the continuance of the hearing for that purpose. Plaintiff, however, failed to include those medical records in the clerk’s transcript on appeal. As a result, we are unable to determine whether they supported the expert’s opinion. But it was plaintiff’s burden to provide an adequate record on appeal that allows us to review his claims of error. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [appealed judgments and orders are presumed correct and appellant has the burden of overcoming this presumption by affirmatively showing error based on an adequate record].) Therefore, we must assume that the medical records submitted to the trial court supported the opinion of the Hospital’s expert. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘All intendments and presumptions are indulged to support [an appealed judgment or order] on matters as to which the record is silent, and error must be affirmatively shown’”].) Moreover, plaintiff’s omission from the clerk’s transcript of the medical records submitted by the Hospital arguably renders the record inadequate for purposes of determining plaintiff’s challenge to the judgment on appeal. Thus, we have no basis upon which to reverse the judgment. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Plaintiff did augment the record with copies of the medical records relied upon by his expert. According to the trial court, the records submitted by plaintiff were the same as those submitted by the Hospital. But because the records submitted by the Hospital are not in the record, we have no ability to verify independently whether the records submitted by plaintiff were the same as those that were submitted by the Hospital.
C. Separate Statement Requirement
Because we have concluded that the Hospital satisfied its initial burden on the summary judgment motion, the burden shifted to plaintiff to make a showing of the existence of a triable issue of fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 862.) To make that showing, plaintiff was statutorily obligated, inter alia, to comply with the separate statement requirement in section 437c, subdivision (b)(3).
In our recent decision in Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408 (Kojababian), we addressed the requirement of a separate statement, explaining as follows: “Section 437c, subdivision (b)(3) states, ‘The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.’” (Kojababian, supra, 174 Cal.App.4th at p. 415.)
“California Rules of Court, rule 3.1350(d) provides, ‘The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.’ Rule 3.1350(e) specifies that the ‘opposition to a motion [for summary judgment] must consist of... [¶]... [¶] (2)... separate statement of undisputed material facts....’” (Kojababian, supra, 174 Cal.App.4th at p. 415.)
“‘The separate statement is not merely a technical requirement, it is an indispensible part of the summary judgment or adjudication process. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for... summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 [282 Cal.Rptr. 368].)’ (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902 (Whitehead).) [¶]... [¶] In Whitehead, supra, 163 Cal.App.4th at page 902, the court said, ‘The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion.’” (Kojababian, supra, 174 Cal.App.4th at pp. 415-416.)
Plaintiff initially failed to file any separate statement in response to the Hospital’s motion, and the separate statement that he did file in opposition to a codefendant’s motion did not comply with section 437c, subdivision (b)(3). Nevertheless, the trial court continued the hearing on the Hospital’s motion to allow plaintiff to cure this procedural defect in his opposition. Plaintiff then filed a separate statement as to the Hospital’s motion, but it failed to address any of the 57 undisputed facts asserted in support of that motion. Those facts, which were supported by a prima facie evidentiary showing, were therefore undisputed for purposes of determining the motion. Accordingly, under these circumstances, the trial court did not abuse its discretion by granting the motion based on plaintiff’s failure to file a conforming separate statement because plaintiff failed to meet his burden of showing the existence of triable issues of material fact.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., WEISMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.