Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV-263755 David R. Lampe, Judge.
Anthony Gaston, in pro. per, for Plaintiff and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Rochelle C. East, Assistant Attorney General, Vickie P. Whitney and April H. Gatling, Deputy Attorneys General, for Defendant and Respondent.
OPINION
LEVY, Acting P.J.
Appellant, Anthony Gaston, a state prison inmate, filed the underlying complaint for negligence, violation of the Americans with Disabilities Act, and violation of his Eighth Amendment right to be free from cruel and unusual punishment against respondent, Lisa Terronez, a medical technical assistant at Kern Valley State Prison. According to appellant, respondent wrongfully deprived him of adult diapers for a one week period.
Respondent moved for summary judgment. In support of her motion, respondent presented evidence that she did not deprive appellant of his diapers, but, rather appellant’s prescription for diapers had expired and she did not have the authority to write or renew prescriptions.
The trial court concluded that the foundational fact for each cause of action was that respondent had deprived appellant of his diapers and that respondent had negated that fact. The court further determined that appellant had not presented evidence demonstrating the existence of a triable issue of fact. Accordingly, the trial court granted summary judgment in respondent’s favor.
Appellant contends that, when the trial court granted summary judgment, it improperly resolved a factual dispute. However, as discussed below, appellant failed to refute the evidence that negated his claims and thus, did not demonstrate the existence of a triable issue of material fact. Therefore, the judgment will be affirmed.
BACKGROUND
Appellant suffers from a medical condition that requires various medications and supplies including adult diapers. On April 4, 2007, appellant asked respondent for his weekly provision of medical supplies, all of which he received except for his usual one-week supply of adult diapers. Respondent informed appellant that he did not receive his diapers because his order for diapers had expired. Appellant did not ask respondent for diapers again.
On April 10, 2007, appellant completed a health care services request asking that the problem with the expired diaper order be rectified. That same day, a nurse practitioner wrote an order to “Continue previous supplies. Add briefs at 21 per week for three months.” Respondent read the order that day and complied with its direction by supplying appellant with a one-week supply of briefs. On or around April 11, appellant received his weekly supply of diapers from respondent.
As a medical technical assistant, respondent’s duties included dispensing medical supplies prescribed by health care providers. She did not supervise other staff and did not have authority to write or renew orders for medical supplies sought by inmate-patients.
Appellant filed an administrative appeal concerning the denial of his weekly provision of diapers from April 4 through April 11, 2007. Appellant noted that he had been receiving diapers for the past 17 months while at Kern Valley State Prison and that his medical supplies had been dispensed primarily by respondent. Appellant argued that, “if a small glitch or typ[o]graphical error was made, ” respondent should have known and provided the diapers. An inquiry was conducted and no action was taken by the prison.
Thereafter, appellant filed the underlying action against respondent. The amended complaint alleged that respondent (1) negligently deprived appellant of his adult diapers; (2) deprived appellant of his diapers in violation of the Americans with Disabilities Act because he was disabled; and (3) deprived appellant of his adult diapers in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Thus, each claim was based on appellant’s allegation that respondent deprived him of his diapers.
Respondent moved for summary judgment. The trial court granted the motion and dismissed appellant’s complaint. The court found that respondent had demonstrated, through undisputed evidence, that she did not deprive appellant of his diapers and that appellant did not produce any evidence that created a triable issue of material fact.
DISCUSSION
1. Standard of review.
A defendant moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. If the defendant carries this burden of production, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) However, the plaintiff opposing the summary judgment motion may not rely on his or her pleadings alone, but must file opposition to the motion, with affidavits setting forth specific facts demonstrating that a triable issue of material fact exists. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) In order to avert summary judgment, the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. (Id. at pp. 162-163.) Evidence that gives rise to no more than speculation is insufficient to establish a triable issue of material fact. (Id. at p. 163.)
When summary judgment is challenged on appeal, the trial court’s ruling is reviewed de novo. (American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins. Co. (2006) 142 Cal.App.4th 1342, 1357.) While strictly construing the defendant’s supporting documents and liberally construing the plaintiff’s documents, the appellate court determines whether the defendant has negated an essential element of the plaintiff’s cause of action or established the nonexistence of any triable issue of material fact, such that the defendant is entitled to judgment as a matter of law. (Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 Cal.App.4th 96, 99-100.) The defendant need only negate one essential element of plaintiff’s case, notwithstanding factual conflicts on other aspects of the case. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 514-515.)
2. The trial court properly granted summary judgment in respondent’s favor.
As noted above, appellant’s causes of action against respondent for negligence, violation of the Americans with Disabilities Act, and violation of the Eighth Amendment all require a finding that respondent was responsible for appellant being deprived of a one-week supply of adult diapers. Otherwise, respondent cannot be found liable.
In support of her motion for summary judgment, respondent declared that, when appellant sought his weekly supply of diapers on April 4, 2007, his order for adult diapers had expired. Appellant confirmed in his deposition that respondent told him on April 4 that his diaper order was no longer good. Respondent further declared that she did not have the ability to write or renew prescriptions for medical supplies. When a nurse practitioner wrote a new order for diapers, respondent provided appellant with his weekly supply. Thus, respondent met her burden of producing evidence to support her claim that she was not responsible for appellant being deprived of diapers for a one-week period. Accordingly, respondent made a prima facie showing that negated an essential element of appellant’s case.
As discussed above, in order to meet his burden of production, appellant was required to set forth specific facts by way of affidavit demonstrating that a triable issue of material fact existed. However, appellant’s declaration was wholly inadequate.
Appellant’s declaration, consisting of four paragraphs, stated, with respect to the April 4 incident,
“ … On April 4, 2007, defendant Terronez, partner who witnessed the confrontation, knew what was going on and did not intervene to assist, when that MTA made rounds plaintiff did not ask that person for assistance, but the person who plaintiff did ask told plaintiff ‘that he needed to handle that on supply day.’
“ … Since plaintiff’s arrival at KVSP, plaintiff’s dressing supplies (e.g. diapers) have not needed to be updated or renewed with the exception of defendant Terronez’s interference with valid doctors orders.”
Thus, appellant did not provide competent evidence refuting respondent’s position that she was not responsible for the diaper deprivation. Accordingly, appellant did not make a prima facie showing of the existence of a triable issue of material fact.
Nevertheless, appellant argues that, besides his declaration, he did provide sufficient evidence of a triable issue of fact. According to appellant, his order had not expired and thus, respondent deprived him of diapers under a false and misleading pretext. In support of this position, appellant relies on the staff complaint response to his administrative appeal and his comprehensive accommodation chrono.
In the staff complaint response, interviews conducted by one prison employee were summarized by another employee. It was reported that respondent denied appellant’s allegations and that respondent informed appellant that he had “no order after 4/10/07 for medical supplies.” Based on this summary, appellant argues that respondent cut off his supply of diapers prematurely. However, this statement attributed to respondent is no more than inadmissible multiple hearsay. Therefore, it cannot be regarded as substantial responsive evidence and is insufficient to raise a triable issue of material fact. Only admissible evidence presented through affidavit or declaration based on personal knowledge will be considered in opposition to a summary judgment motion. (Code Civ. Proc., § 437c, subd. (d); Sangster v. Paetkau, supra, 68 Cal.App.4th at pp. 162-163.)
Appellant’s comprehensive accommodation chrono is also insufficient to establish a triable issue of material fact. This chrono specifies that appellant is to receive certain medical equipment and supplies on a permanent basis, i.e., a wheelchair, catheter and extra mattress. However, adult diapers are not listed. Accordingly, this evidence does not support appellant’s position that his adult diaper order was in effect on April 4, 2007.
In sum, respondent presented competent evidence establishing that she was not responsible for appellant being deprived of adult diapers from April 4 to April 11, 2007, and appellant did not present responsive evidence sufficient to establish that this issue was triable. Since all of appellant’s causes of action are dependent on a finding that respondent was responsible for his not receiving diapers for a week, appellant cannot prevail on his complaint. The existence of other issues of fact, if any, is therefore irrelevant. Thus, summary judgment was properly granted in respondent’s favor.
Appellant has requested this court to take judicial notice of respondent’s answers to interrogatories propounded in appellant’s federal court action. However, these interrogatories were answered after summary judgment was granted and therefore may not be considered in this appeal. (Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163.) In any event, these answers do not demonstrate the existence of an issue of material triable fact and therefore are irrelevant to this appeal. Accordingly, appellant’s request for judicial notice is denied.
DISPOSITION
The judgment is affirmed. In the interest of justice, no costs on appeal are awarded. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: CORNELL, J., FRANSON, J.
Appellant has also requested this court to take judicial notice of “every 602, staff complaint against Defendant Terronez during her tenure at Kern Valley State Prison.” However, this evidence was not presented to the trial court. Moreover, this evidence is irrelevant to the issues on appeal. Therefore this request is denied.