Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. L00778, Christopher W. Yeager, Judge.
HALLER, J.
Danny Guerra, a prisoner at Calipatria State Prison (Calipatria), sued the State of California (State), the Department of Corrections (Department), and three physicians, alleging a federal civil rights claim and professional negligence arising from medical care for a knee and ankle injury. The court granted summary judgment in favor of defendants.
Guerra appeals, contending: (1) triable issues of fact exist on his claims against defendants; (2) the court abused its discretion in refusing to grant an extension of time to oppose the summary judgment; and (3) the court abused its discretion in failing to find defendants and their counsel committed "fraud," "forgery," and/or "perjury" in defending against Guerra's claims in this lawsuit. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Guerra's complaint alleges the following. On August 5, 2000, Guerra was assaulted by other Calipatria inmates and sustained neck and right knee injuries. During the next six weeks, Guerra reinjured his knee and ankle several times. On October 3, 2000, Guerra saw Dr. Jerome Sands, a Calipatria staff physician, for these injuries. Dr. Sands referred Guerra to an orthopedic specialist, but did not immediately issue Guerra crutches, a cane, or ace bandages. During the next two months, Guerra continued to have knee pain, and repeatedly reinjured his knee and ankle because of the lack of knee and ankle supports. On December 12, 2000, Guerra had his second medical examination with Dr. Sands. After the examination, Dr. Sands again referred Guerra to the orthopedic surgeon and ordered ace bandage wraps and elastic knee and ankle supports. Guerra did not receive the support bandages until three months later in March 2001. Although two appointments were scheduled with the orthopedic specialist, Guerra was unable to make those appointments because of legal proceedings requiring his attendance.
Despite his numerous complaints and administrative appeals, Guerra had not been seen by an orthopedic specialist by the time he filed his complaint in August 2001. In his complaint, Guerra named the State, the Department, Dr. Sands, and two individuals who had occasionally served as acting medical chief of staff at Calipatria (Dr. Phillip Dupler and Dr. Gilbert Wilson). Guerra alleged four causes of action: (1) intentional deprivation of his constitutional rights (42 U.S.C. § 1983 ); (2) professional negligence in failing to provide Guerra with "adequate medical care and diagnostic services" and to permit him to consult an orthopedic expert; (3) declaratory relief seeking to require defendants to follow their own rules in regard to Guerra's medical treatment; and (4) injunctive relief seeking to enjoin defendants from continuing to harm Guerra by refusing to provide adequate medical care. Guerra alleged that defendants caused him to suffer "severe physical and emotional pain, physical disfigurement, [and] intentional infliction of emotional distress . . . ."
All further section references are to Title 42 of the United States Code, unless otherwise specified.
Two months after he filed the lawsuit, Guerra was seen in the prison orthopedic clinic by Dr. David Smith, an orthopedic specialist. During the examination, Dr. Smith noted a possible tear or other internal derangement of the right knee and submitted a request for an arthroscopy. The arthroscopy was ultimately performed on Guerra in November 2002.
In September 2006, defendants moved for summary judgment on Guerra's complaint. Defendants argued Guerra's claims against the State and the Department were without merit because these entities are not amenable to suit under section 1983 and are immune from tort liability under state law (Gov. Code, § 845.6). With respect to the individual defendants, defendants argued the section 1983 claim was without merit because the undisputed evidence showed that none of the defendants acted with deliberate indifference to Guerra's medical needs, and two of the defendants (Dr. Wilson and Dr. Dupler) had no personal involvement in the alleged wrongdoing. Defendants also argued that the medical malpractice cause of action was without merit because the undisputed evidence showed Dr. Sands acted consistent with the applicable standard of care.
In support of these arguments, defendants produced declarations of the three defendant doctors. In his declaration, Dr. Sands detailed his treatment of Guerra, which consisted of two office visits. On the first visit (October 3, 2000), Guerra complained of "knee pain, swelling and disability and requested knee supports." After examining Guerra's knee, Dr. Sands found it "appeared normal," but referred Guerra to an orthopedic specialist and ordered X-rays. Two weeks later, the X-rays were taken, and they showed no evidence of fracture or abnormality. On the second visit (December 12, 2000), Guerra related that he was having continuing knee pain and was also experiencing ankle pain. Dr. Sands observed that the knee appeared the same as it did on October 3, but again referred Guerra to an orthopedic specialist, and ordered elastic supports for Guerra's right knee and ankle.
In his declaration, Dr. Dupler, a retired dentist, stated that from about July 1996 to August 2003, he served as chief dental officer at Calipatria, and that he would occasionally serve as acting health care manager of the prison. His only contact with Guerra was approving an appeal decision granting Guerra's request that he not be disciplined for missing orthopedic clinic appointments because of conflicts with court dates and a "vector control problem." Additionally, in November 2002, Dr. Dupler "authorized [Guerra's] transfer and admission to Alvarado Hospital" following the arthroscopy procedure.
In his initial declaration, Dr. Dupler inadvertently left out the phrase that he could "testify competently" to the facts stated, and that the statements made were true and correct "under the laws of California." After Guerra objected to the declaration because of the two missing phrases, defendants submitted a supplemental declaration that cured these deficiencies.
In his declaration, Dr. Wilson stated that in 2001, he was employed as a physician and surgeon at Calipatria, and was responsible for providing medical care to prison inmates. During several months in 2001, Dr. Wilson also served as acting chief medical officer and health care manager at the prison, and was responsible for coordinating departmental supervisors, staff physicians, and consultants. Dr. Wilson said he has never met Guerra, nor has he been responsible for Guerra's medical care or for supervising those who provided medical care to Guerra. Dr. Wilson was never made aware of Guerra's complaints regarding his knee and ankle pain.
Defendants also submitted the declaration of an experienced orthopedic surgeon, Dr. Raymond Vance, who opined that based on his review of Guerra's medical records, "Dr. Sands acted at all relevant times consistent with the standard of care in the medical community in his treatment and care of plaintiff for his knee and ankle pain." Dr. Vance explained that "Dr. Sands met the community standard of care by examining plaintiff's right knee and ankle, ordering x-rays of the right knee, referring plaintiff to an orthopedic surgeon for specialty care . . ., and then . . . ordering knee and ankle supports for plaintiff to reduce the pain while he was waiting to be seen by the orthopedic specialist."
On September 18, 2006, Guerra moved to "quash" the summary judgment motion. The basis of the motion was his assertion that he was not properly served with the summary judgment papers and that pages were missing in the motion papers.
In opposing this motion, defendants filed declarations from the individuals who assembled the summary judgment papers for service and the individual who served the papers on Guerra. These individuals stated that the papers had been complete, were fastened together by staple or prong paper fastener, and had been hand-delivered to Guerra on August 30, 2006. Defendants also produced a declaration from their counsel, who stated that without conceding or waiving any of these arguments, he directed the hand-delivery to Guerra of a second complete version of the summary judgment papers on September 22, 2006.
At the October 11 hearing on Guerra's motion to quash, the court took the motion off calendar and defendants agreed to re-serve the summary judgment papers. The parties vacated the date for the hearing on the summary judgment motion, and agreed to extend the five-year statutory deadline to mid-May 2007, with the understanding the summary judgment motion would be refiled.
On that same date (October 11), Guerra propounded written discovery, seeking various documents from the State and the Department, including: (1) documents concerning medical care policies and practices at Calipatria; and (2) documents filed in a federal court class action, in which a district court issued an order finding California's prison health care system to be sufficiently deficient to require the imposition of a federal receivership to take control of the delivery of medical services to California state prisoners. (Plata v. Schwarzenegger (N.D.Cal., May 10, 2005) 2005 U.S. Dist. LEXIS 8878 (Plata).) Although defendants asserted various objections to the requested discovery, they agreed to, and did, produce nonprivileged documents responsive to the request for information about Calipatria medical policies and practices during 2000 through 2002, and to produce other nonprivileged documents in response to several other categories of requested documents.
On October 27, 2006, defendants refiled the summary judgment motion with the same supporting documents, and served that motion on Guerra.
Two months later, Guerra moved for an extension of time in which to respond to the summary judgment motion. As detailed in the Discussion section below, Guerra argued that he needed more time to gather additional information pertaining to defendants' fraud and perjury in litigating the case and to obtain additional discovery related to the Plata case. Guerra also expressed concerns that defendants had asserted objections to various document requests, and stated that he was in the process of rewriting those requests to obtain the necessary information. After a hearing, the court denied the request for an extension of time.
On January 23, 2007, Guerra filed his opposition to the summary judgment motion. In the opposition, Guerra argued that defendants' immunity defense was without merit, and that the summary judgment must be denied because there were triable issues of fact as to whether the medical care he received was inadequate. In support, he presented copies of records from his medical file. However, he did not submit an expert declaration. Instead, he submitted his own declaration in which he described his initial ankle/knee injury sustained in August 2000, his two appointments with Dr. Sands, and the various missed appointments with an orthopedic specialist, which he asserted were caused by "staff errors." Guerra's declaration then states: "After unexplained reasons almost a full year passed before I was taken to Alvarado Hospital . . . for surgery on approximately November 5, 2002. And that was only because this instant action was filed . . . [¶] . . . [¶] . . . I finally received surgery on November 5, 2002 after the Orthopedic Surgeon recommended surgery as mandatory approximately [in] September 2001. . . . To date . . . my ankle has never been surgically repaired and I am still experiencing pain in my ankle from the 2000 August injury . . . . [¶] . . . After surgery in November 2002, my leg became infected and I was returned to Alvarado Hospital for treatments, which lasted approximately (3) three weeks." Guerra also devoted a substantial portion of his declaration to argue that defendants committed "perjury" in moving for summary judgment and that their supporting papers were "forged" and/or "fabricated."
Guerra also filed a separate objection to the summary judgment motion based on his assertions that defendants and their counsel "attempt[ed] to use perjury and forged documents to defraud this court and plaintiff in this action." (Capitalization omitted.) In support, he focused on events surrounding the service of the first summary judgment motion in August 2006 and statements contained in discovery responses and the declarations of defendants and their counsel.
After holding a hearing and a "full consideration" of the filed papers, the court granted the summary judgment motion, finding "there are no triable issues of material fact and therefore defendants are entitled to summary judgment as a matter of law." The court overruled Guerra's evidentiary objections, finding they were not in proper form, and did not alert the trial court to the nature or ground for each objection. The court sustained defendants' evidentiary objections to Guerra's submissions. The court additionally rejected Guerra's claims that defendants and/or their counsel committed perjury or fraud in litigating the case.
DISCUSSION
I. Propriety of Summary Judgment
A. Standard of Review
A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Ibid.) If this burden is met, the burden of production shifts to the opposing party to make a prima facie showing of a triable issue of material fact. (Ibid.) In reviewing a summary judgment, we apply a de novo review standard. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidentiary showing while strictly scrutinizing the moving party's showing. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Under these principles, we review the propriety of the summary judgment as to each party and each of Guerra's causes of action: (1) a section 1983 federal civil rights violation; (2) medical malpractice; and (3) related claims for injunctive and declaratory relief.
B. Federal Civil Rights Claim
To prevail on a federal civil rights claim under section 1983, a plaintiff must show the violation of a constitutionally protected right. (Thorning v. Hollister School Dist. (1992) 11 Cal.App.4th 1598, 1609.) To establish this violation based on alleged inadequate medical care, a prisoner must show the defendant official exhibited "deliberate indifference" to the prisoner's "serious medical needs." (Estelle v. Gamble (1976) 429 U.S. 97, 104.) "[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' [citation] proscribed by the Eighth Amendment." (Ibid.)
Deliberate indifference cannot be shown by mere negligence or inadvertence. (See Estelle v. Gamble, supra, 429 U.S. at pp. 105-106.) Rather, deliberate indifference requires a showing of actual intent to harm or recklessness. (Farmer v. Brennan (1994) 511 U.S. 825, 836-840.) Recklessness is measured by a subjective standard, requiring actual "know[ledge] [of] a substantial risk of serious harm and disregard[ ] [of] that risk by failing to take reasonable measures to abate it." (Id. at pp. 836-840, 847.) "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." (Id. at p. 837.)
We apply these principles to determine whether the court properly granted the summary judgment motion on Guerra's section 1983 claim as to each defendant.
Dr. Sands
Defendants presented evidence that Dr. Sands's treatment of Guerra's knee and ankle injuries was at all times consistent with the standard of care in the medical community and Department policy. Further, the evidence showed that Dr. Sands twice referred Guerra to an orthopedic specialist and ordered X-rays and support bands for Guerra's knee and ankle. This evidence was sufficient to shift the summary judgment burden to Guerra to show "deliberate indifference" and that this conduct caused Guerra's claimed injuries.
Guerra failed to meet his burden. Guerra did not present any fact showing Dr. Sands had the intent to harm Guerra or was reckless in his medical treatment. In his appellate brief, Guerra argues that the "deliberate indifference" was established by the fact that it took approximately 27 months from the time he initially received the injuries to the time he obtained knee surgery. However, there is no showing that Dr. Sands had anything to do with this delay. Moreover, there is no showing that the injury for which Guerra was treated in 2000 was the same injury that was treated by surgery in 2002. Similarly the fact that Guerra has not had surgery on his ankle does not establish deliberate indifference by Dr. Sands. There was no foundational evidence that surgery on Guerra's ankle was necessary, or that Dr. Sands caused any delay for that surgery.
Dr. Dupler and Dr. Wilson
As a prerequisite to any civil rights action under section 1983, a plaintiff must show personal involvement by the defendant in the alleged incidents forming the constitutional injury. (Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934; Jeffers v. Gomez (9th Cir. 2001) 267 F.3d 895, 915; see Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279-1280.) For a supervisor to be liable, the plaintiff must establish the supervisor directly participated in the challenged conduct or set in motion a series of acts by others which he knew or had reason to know would cause others to inflict the constitutional injury. (See Jeffers v. Gomez, supra, 267 F.3d at p. 915; Johnson v. Duffy (9th Cir. 1978) 588 F.2d 740, 743-744.) Supervisory liability must be based on more than merely the right to control employees. (Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658, 694, fn. 58.)
In this case, it is undisputed that neither Dr. Wilson nor Dr. Dupler had ever met Guerra, provided him medical care, or been responsible for his medical care. Dr. Dupler's only involvement with Guerra was to approve a decision granting Guerra's request that disciplinary action not be taken against him for missing medical appointments, and to authorize Guerra's admission to Alvarado Hospital in November 2002. Dr. Wilson had no involvement with Guerra's knee and/or ankle complaints. Guerra did not present any contrary evidence showing that Dr. Dupler or Dr. Wilson were responsible for the alleged inadequate medical treatment or delays in his medical treatment.
Based on this record, Guerra's section 1983 claims against Dr. Dupler and Dr. Wilson are without merit.
The State and The Department
We likewise conclude that Guerra's section 1983 claims against the State and the Department are without merit. The trial court correctly found these claims fail as a matter of law because the state and its agencies are not persons for purposes of a section 1983 action. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71; Groten v. California (9th Cir. 2001) 251 F.3d 844, 851.) A summary judgment is a proper vehicle for testing the legal sufficiency of the complaint. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117-1118.)
C. Professional Negligence
In his second cause of action, Guerra alleged professional negligence against each of the defendants.
To prove a professional negligence claim, the plaintiff must establish the applicable standard of care and a breach of that standard. "Because the standard of care in a medical malpractice case is a matter 'peculiarly within the knowledge of experts' [citation], expert testimony is required to 'prove or disprove that the defendant performed in accordance with the standard of care' unless the negligence is obvious to a layperson." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) This requirement applies in a summary judgment proceeding. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) A medical malpractice defendant who supports a summary judgment motion with applicable expert declarations " 'is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.' " (Id. at p. 985.)
Guerra alleged Dr. Sands breached his duties in caring for and treating knee and ankle injuries. These issues are beyond the common knowledge of the layperson and require expert testimony. Defendants complied with their summary judgment burden by submitting a declaration of an experienced orthopedic surgeon who opined that "Dr. Sands acted at all relevant times consistent with the standard of care in the medical community in his treatment and care of plaintiff for his knee and ankle pain." This expert further explained the basis for his opinion.
Guerra did not come forward with any expert testimony showing that treatment by Dr. Sands was negligent. Thus, Guerra did not meet his summary judgment burden, and the court properly granted the motion in favor of Dr. Sands. To avoid this result, Guerra argues the trial court erred in denying his oral request for the appointment of an independent expert. The argument is without merit.
Evidence Code section 730 permits a court to appoint an expert, but does not confer an absolute right upon a party in a civil action to the appointment. Instead, the matter is left to the trial court's broad discretion. (See Laguna Salada etc. Dist. v. Pac. Dev. Co. (1953) 119 Cal.App.2d 470, 473-474 [interpreting predecessor statute]; Pink v. Slater (1955) 131 Cal.App.2d 816, 817-818.) The trial court's decision to deny this request is reviewed for abuse of discretion. (Ibid.; see also Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2007) ¶ 8:722, p. 8C-92.)
The court did not abuse its discretion in denying Guerra's request. Guerra waited more than five years after he filed his complaint to ask for the appointment of an independent expert. He did not request the appointment until the day of the hearing on the summary judgment motion, several months after defendants filed their summary judgment motion. Guerra provided no reasonable explanation for this delay. On this record, the court could reasonably conclude that Guerra's request was waived as untimely and/or brought merely to delay the proceedings, rather than to obtain evidence that could be used to support his claims.
Because Guerra's tort claim fails against Dr. Sands, the claim likewise fails against Dr. Dupler and Dr. Wilson. Defendants presented evidence showing that neither Dr. Dupler nor Dr. Wilson had any involvement in the alleged malpractice. Guerra did not present any contrary evidence.
With respect to tort liability against the State and the Department, these defendants were immune from liability. Generally, a public entity is immune from liability based on injury to a prisoner caused by alleged improper medical care. (Gov. Code, §§ 844.6, 845.6; Wright v. State of California (2004) 122 Cal.App.4th 659, 672.) An exception to this rule is contained in Government Code section 845.6, which provides "a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knew or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." (See Watson v. State of California (1993) 21 Cal.App.4th 836, 841-842.) This exception to the general immunity rule is narrowly construed. " 'This section limits the duty to provide medical care for prisoners to cases where there is actual or constructive knowledge that the prisoner is in need of immediate medical care.' " (Id. at p. 841.)
In this case, Guerra did not plead in his complaint that defendants were negligent because he did not obtain "immediate" medical care shortly after he injured his knee and ankle, nor did he claim damages resulting from the lack of such immediate medical care. Instead, his claims concerned defendants' failure to provide him with reasonable continuing care once he reported his knee and ankle injuries. These claims do not fall within the exception to the general immunity rule. (See Watson v. State of California, supra, 21 Cal.App.4th at p. 842.)
D. Injunctive and Declaratory Relief
Because we conclude the court properly granted defendants' summary judgment motion on Guerra's substantive claims, we reach the same conclusion on defendants' causes of action for declaratory and injunctive relief. Guerra did not raise a triable issue of fact as to his civil rights or professional negligence claims, and therefore he is not entitled to a trial seeking equitable relief for these claims.
In determining the court properly granted the summary judgment, we recognize that Guerra's response to defendants' separate statement of undisputed facts was not in proper form, but we do not rely on this procedural defect in reaching our conclusion. Additionally, contrary to Guerra's assertions, defendants did not concede the existence of disputed material facts in their respondent's brief or in any document filed in the court below.
II. Request for a Continuance
Guerra next contends the court erred in denying his motion for continuance.
The summary judgment statute provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (Code Civ. Proc., § 437c, subd. (h).)
To obtain a continuance under this provision, the moving party must submit an affidavit showing: "(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts." (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) The fact that discovery or investigation is contemplated is insufficient to meet this showing. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) "The decision whether to grant a continuance under Code of Civil Procedure section 437c, subdivision (h), is reviewed for an abuse of discretion." (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 596.)
In this case, defendants initially moved for summary judgment in September 2006. To avoid any issues with claimed deficient service, the court took the motion off calendar and defendants agreed to refile their motion. Defendants then filed the identical motion on October 27, 2006, and again served Guerra with the motion and supporting papers. The hearing was scheduled for January 31, 2007.
On December 14, 2006, Guerra moved for an extension of time to file his opposition. In support, Guerra submitted his declaration stating that he served a request for production of documents on October 11, 2006 (more than five years after filing the action), and that defendants "have provided some discovery documents," but were " 'refusing' to provide others." Guerra said he was in the process of "attempting to rewrite his discovery requests to comply with defendants objections but by the tone of defendants response it is unlikely defendants will cooperate without court intervention."
Guerra also stated that he needed an extension to obtain the expert medical reports, opinions, and testimony underlying the Plata case because information in these documents may "lead reasonably to discoverable evidence." Guerra quoted extensively from the federal district court's order which found California's prison medical care system to be substantially deficient and "broken beyond repair." Guerra argued the discovery was needed to show Calipatria medical care is "incompetent," "inadequate," and "deliberately indifferent" to the "serious medical needs" of inmates. Guerra also stated that he has "gathered some evidence which suggests defendants and their counsel have committed perjury to this court, have [suborned] witnesses to commit perjury [and] have manufactured evidence in this case . . .," and that he needed a continuance to obtain additional evidence to prove this conduct.
After considering this evidence, the court denied the continuance. The court's denial was not an abuse of discretion.
First, contrary to Guerra's repeated contentions in his appellate briefs, the fact that Guerra has accused defendants of "fraud" does not mean the court erred in denying a continuance. There was no evidence in the record suggesting that defendants and/or their counsel engaged in any form of wrongdoing in defending against Guerra's claims. Nor did Guerra identify any basis for a reasonable belief that additional discovery would lead to the discovery of such evidence. The court was not required to provide Guerra more time merely to engage in a quest to find evidence to support his imagined scenario that defendants acted improperly in litigating the case. Although Guerra asserted in his declaration that the facts surrounding the service of the summary judgment papers showed wrongful conduct on behalf of defendants and their counsel, there was no evidence to support this claim, and the court had the discretion to conclude these assertions were not credible and/or they were not sufficiently substantiated to justify the need for additional discovery.
Additionally, Guerra did not provide a reasonable basis for concluding that the documents sought concerning the Plata litigation were essential to his opposition to the summary judgment motion. There were no facts in Guerra's declaration showing that this evidence related to the medical care he received at Calipatria during the relevant times. Guerra's mere suspicion that the Plata documents may contain some facts relevant to his case is not enough to support the need for a continuance. Moreover, Guerra provided no justification for waiting until the very last minute to seek information about the Plata case. Although the Plata order was issued in 2005, Guerra waited more than one year to seek any information related to the case, and did not offer any explanation for this delay.
We reach a similar conclusion with respect to Guerra's contention that he needed more time to obtain other documents from his October 11, 2006 document request. Guerra did not provide any reasonable basis for failing to seek these documents earlier. Instead, he merely stated that he was attempting to rewrite his discovery requests, and doubted that defendants would comply in good faith with them. This is insufficient to mandate a continuance under Code of Civil Procedure section 437c, subdivision (h).
Finally, we reject Guerra's contentions that the court abused its discretion by not considering proper factors in ruling on his continuance request and by failing to state its reasons for denying the request. There is no requirement for express findings in ruling on a continuance motion. We are required to presume the trial court considered all relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.)
At the time of the summary judgment motion, the matter had been pending in excess of five years. Guerra had more than enough time to conduct the discovery needed to identify evidence supportive of his case. The court did not abuse its discretion in denying Guerra's request for a continuance.
III. Defendants' Alleged Wrongful Conduct in Litigating the Case
Guerra contends the court abused its discretion in denying his various motions and objections based on defendants' use of "fraud, forgery and perjury" in litigating the case.
The sole evidence of defendants' wrongful conduct was based on Guerra's assertions in his declarations. Guerra claimed that Calipatria staff, apparently with defendants' counsel's assistance, tampered with his legal mail; that respondents and their counsel committed perjury and fraud in their declarations filed in support of summary judgment; and that Guerra had been wrongfully denied discovery which he needed to overcome respondents' pending motion for summary judgment. Defendants filed counter declarations refuting each of Guerra's claims.
On the record before us, the court had a substantial basis to find Guerra's assertions to be not credible, and therefore to reject Guerra's motions for sanctions and objections to defendants' evidence. On our independent review of the record, we find the court's conclusions were amply supported by the evidence. There was no abuse of discretion.
DISPOSITION
Judgment affirmed. The parties to bear their own costs on appeal.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.