Opinion
E067690
12-13-2018
MATTLONE E. DRINK, Plaintiff and Appellant, v. FRANKLIN K. TORRES et al., Defendants and Respondents.
Mattlone E. Drink, in pro. per., for Plaintiff and Appellant. Schmid & Voiles, Kyle A. Cruse and Denise H. Greer for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. MCC1500342) OPINION APPEAL from the Superior Court of Riverside County. Raquel A. Marquez, Judge. Affirmed. Mattlone E. Drink, in pro. per., for Plaintiff and Appellant. Schmid & Voiles, Kyle A. Cruse and Denise H. Greer for Defendants and Respondents.
I. INTRODUCTION
In this medical negligence action, the court granted the summary judgment motion of defendants and respondents, Franklin K. Torres, M.D. and West Coast Surgical Specialists. Plaintiff and appellant, Mattlone E. Drink, contends the court erred because there were triable issues of material fact. But the record she designated on appeal does not include key documents, such as the complaint and defendants' moving papers. We therefore affirm the presumptively correct judgment.
II. BACKGROUND
The scant record before us does not permit a meaningful discussion of the facts or the summary judgment motion. As discussed, it does not include key documents, but it includes documents Drink filed in opposition to the motion and a register of actions. We provide as much background as possible, in light of the limited record.
Drink filed the complaint in August 2015. Defendants filed their motion for summary judgment in June 2016 and reserved a hearing date in September 2016. Drink did not file any opposition. Still, at the September hearing, the court continued the matter for 90 days. The court had determined that defendants failed to give Drink the statutorily required 75 days' notice. (Code Civ. Proc., § 437c, subd. (a)(2).) Defendants re-served their moving papers that day.
The court scheduled the continued hearing for December 7, 2016. On December 5, 2016, Drink filed opposition papers consisting of her own declaration, an unsworn declaration from her son, and documentary evidence. She proffered purported medical records from three different institutions, a nursing home billing statement, and two pictures of her arm. She also attempted to file or lodge DVDs that purportedly included medical records, but it appears the clerk did not accept them.
In her declaration, Drink explained that Dr. Torres surgically placed a dialysis access site on her left arm. She told him that she was visiting from Chicago and asked him to get her medical records from her physicians in Chicago. The access site became infected and required multiple surgeries and a nursing home stay. Drink's son declared that he was present for all of Drink's visits with Dr. Torres and was "never consulted on the surg[er]y procedure changes."
The day before the summary judgment hearing, the court posted a tentative ruling granting defendants' motion. Pursuant to the Riverside County Superior Court local rules, tentative rulings become final unless, "by 4:30 p.m. on the court day before the scheduled hearing, a party gives notice of intent to appear to all parties and the court." (Super. Ct. Riverside County, Local Rules, rule 3316(B).) At the hearing, the court noted Drink had failed to give notice of her intent to appear, and the court thus adopted its tentative ruling as final. The ruling stated, in pertinent part: "GRANT the unopposed motion for summary judgment. Moving party meets its initial burden. There are no triable issues of fact." The court later entered judgment for defendants, and Drink filed a timely notice of appeal.
III. DISCUSSION
Defendants moving for summary judgment must present evidence showing that they are entitled to judgment as a matter of law. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) They must demonstrate "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Once they meet that burden, "the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts." (Carlsen v. Koivumaki, supra, at p. 889; Code Civ. Proc. § 437c, subd. (p)(2).)
We presume a judgment is correct, and the "party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) If appellants fail to provide a record sufficient to evaluate the merits of their arguments, we must reject their arguments. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Ballard v. Uribe, supra, at p. 575.)
The record that Drink has designated on appeal is wholly inadequate to show reversible error. To begin with, it does not contain the complaint. The complaint defines the issues to be addressed in a motion for summary judgment, because "[i]t is the allegations in the complaint to which the summary judgment motion must respond." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) More importantly, the record does not contain defendants' moving papers. We do not know on what legal basis defendants moved for summary judgment. Nor can we review whether defendants' evidence met their initial burden, and if so, whether Drink met her responsive burden of showing at least one triable issue of material fact. We must instead presume the trial court was correct and affirm the judgment. (E.g., Ballard v. Uribe, supra, 41 Cal.3d at p. 575.)
Drink has requested that we judicially notice the four DVDs of medical records she attempted to file or lodge below. We deny this request. Regardless of whether the clerk ever lodged the DVDs—and it is unclear if that occurred—they are not relevant on appeal. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) They constituted Drink's evidence and do not cure her fundamental problem—that she has not provided the complaint or defendants' moving papers.
IV. DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.