Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2008-00116714, James Loveder, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Gilbert & Marlowe and Richard C. Gilbert for Plaintiff and Appellant.
Beam, Brobeck, West, Borges & Rosa, David J. Brobeck and Stephen J. Martino for Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
The court granted summary judgment in favor of defendants County of Orange, Orange County Sheriff’s Department, and Sandra Hutchens, as Sheriff, etc. against plaintiff James D. Harold, Jr. In his complaint plaintiff sought damages, claiming he suffered a stroke because defendants denied him access to medical care. Defendants prevailed on the ground plaintiff could not show causation. After de novo review we agree there is no triable issue of fact as to causation and affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff filed a complaint against defendants based on his alleged mistreatment when incarcerated in defendants’ jail facility. It pleaded that when he entered the jail he advised defendants he suffered from hypertension and diabetes and he surrendered possession of his medication for those conditions to them. He was put in the general population and not in a medical unit. His requests to be seen by a doctor or nurse and for his medication were ignored for 10 days. As a result, he alleged, a week later he suffered a stroke. His complaint included causes of action for denial of his civil rights under the Eighth and Fourteenth amendments to the federal Constitution and the Unruh Civil Rights Acts (Civ. Code, § 51 et seq., ) negligence, medical negligence, and intentional and negligent infliction of emotional distress, all based on failure to provide access to medical care and his medications.
Defendants filed a motion for summary judgment, supported by the declaration of Roy Herndon, M.D. He stated his qualifications, and listed defendants’ medical records he reviewed. He described the contents of those records that set out plaintiff’s medical history of diabetes and hypertension, including his numerous visits to hospitals during the three and a half years prior to his incarceration for treatment for hypoglycemia and diabetes. Plaintiff went weeks or months without taking his medication for diabetes. About two weeks before his incarceration plaintiff spent two days in the hospital “for a hypertensive emergency[, ] uncontrolled diabetes, ” “heart palpitations and some chest pain.” Blood tests also revealed plaintiff may have had a heart attack.
A week after plaintiff was admitted to the jail he exhibited symptoms of “uncontrolled hypertension and diabetes along with a history of coronary artery disease.” After being treated in the infirmary for a week, he was sent to the hospital where he continued to be treated for those conditions. Several tests were also performed. After four days in the hospital he was transferred to a rehabilitation facility for about a week, at which time he was returned to the medical ward at the jail where he remained until released from custody about three weeks thereafter.
Two months later, after failing to take his blood pressure pills for a week, plaintiff was admitted to a hospital and treated. During that time a CT scan of his head showed he was “within normal limits.”
Almost a year later plaintiff consulted a doctor in Washington State about a “possible stroke.” His symptoms included hypertension, poor balance, dizziness, trouble walking, numbness and tingling, blurred vision, and weakness in the left side. The doctor noted plaintiff’s history of hypertension, diabetes, and coronary artery disease. These symptoms are similar to those of a stroke. Two brain tests “suggest[ed] an area of prior infarction.”
Based on his review of plaintiff’s medical records, plus his training, experience, and knowledge, it was Herndon’s belief that, “to a reasonable degree of medical probability, ” plaintiff did not suffer a stroke while in the custody of defendants. Rather, his conditions resulted from years of “uncontrolled diabetes and hypertension, ” for which plaintiff has failed to consistently take prescribed medication. Plaintiff’s medical records reveal the first evidence of a stroke was after he was released from jail. On that basis, Herndon concluded, defendant’s medical condition was not caused by any act or omission of defendants. In their separate statement defendants relied on this opinion to support a statement that “[t]o a reasonable degree of medical probability, ” they committed no act or omission causing plaintiff “to suffer a stroke” or that “substantially contributed to [plaintiff’s] current medical condition.”
In his declaration in opposition to the motion plaintiff maintains he is in poorer health than he was the prior year, suffering from kidney failure; he is also legally blind. Additionally, he maintains he had never had a stroke before the time he was in jail. In his separate statement, plaintiff denied defendants’ claim they had done nothing to cause a stroke or other medical problem. He relied on his complaint and answers to interrogatories, which stated defendants failed to give him his medication or access to “timely medical services.” He did not file an expert’s declaration.
The court granted the motion on the ground defendants had shown a lack of causation and plaintiff had failed to file a required declaration from an expert to rebut that evidence. Judgment was subsequently entered.
DISCUSSION
A defendant moving for summary judgment bears the burden of demonstrating that one of the elements of the cause of action “cannot be established, or that there is a complete defense....” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once sufficient evidence is produced to meet this burden, the burden shifts to plaintiff to produce sufficient evidence to demonstrate that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Each of plaintiff’s causes of action requires a showing of causation: denial of civil rights under the Eighth and Fourteenth amendments to the Constitution (42 U.S.C. section 1983 [liability if a defendant “subjects, or causes to be subjected, any... person... the deprivation of any rights”]) and the Unruh Civil Rights Act (Civ. Code, §§ 51, 52 [liability if a defendant denies or interferes with person’s “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments”]); negligence, medical negligence, and negligent infliction of emotional distress (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528 [element of negligence is causation]; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-985 [negligent infliction of emotional distress is not separate tort but is negligence]); and intentional infliction of emotional distress (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 [causation is element of this tort]).
Herndon’s declaration, which stated nothing defendants did or failed to do caused plaintiff any harm, negated this element, shifting the burden to plaintiff to produce evidence sufficient to show the existence of a triable issue of fact as to causation. As shown above, plaintiff failed to proffer any such evidence.
Plaintiff’s brief does not persuade us otherwise. It contains no headings setting out the substance of his argument as required (Cal. Rules of Court, rule 8.204(a)(1)(B)) and his argument, part of which is interspersed in the statement of facts, is less than half a page and contains no legal authority (People v. Stanley (1995) 10 Cal.4th 764, 793). We could affirm the judgment on this basis alone. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165.)
Even on the merits, however, plaintiff has not convinced us there is a triable issue of fact as to causation. The gist of plaintiff’s argument seems to be the inadequacy of Herndon’s declaration. He first asserts defendants do not disagree that he had a stroke while in their custody. This is completely contrary to defendants’ position, based on Herndon’s declaration, that plaintiff did not have a stroke until sometime after his release.
Plaintiff also contends Herndon stated plaintiff was not damaged by the stroke and criticizes the statement as being “ridiculous” and unreasonable. But Herndon never said plaintiff suffered no damages, just that defendants did not cause them. Plaintiff maintains Herndon “relied upon a false prior medical history....” The two record references he cites are an argument in his points and authorities in opposition to the motion that since some undefined time his health has declined and the statement in his declaration that he never had a stroke before he was in the Orange County jail. But neither of these rebuts the lack of causation shown by Herndon’s declaration. Further, plaintiff’s claim he never told the doctor in Washington he had a stroke is irrelevant. Herndon’s declaration does not make such a statement and in any event nothing in the record supports this argument.
Plaintiff points out that Herndon never treated him, but he cites no authority that this is required and it clearly is not. (See Bureau of Medical Economics v. Cossette (1974) 44 Cal.App.3d Supp. 1, 5 [doctor who testified as expert who had not treated the plaintiff entitled to expert witness fees].)
Plaintiff suggests Herndon impeached himself several times in his declaration. He notes statements about plaintiff suffering from hypertension and diabetes when admitted to the jail, his blood pressure while in custody, his blood sugar level while in custody at the hospital, that he received follow-up care, and that he is currently receiving dialysis. But none of these contradicts Herndon’s opinion that defendants did not cause plaintiff to suffer a stroke.
Plaintiff also argues Herndon’s opinion that “to a reasonable degree of [medical] probability” defendants did not cause plaintiff to have a stroke is insufficient. But the law states otherwise. When a doctor testifying as an expert gives an opinion about a medical condition it “‘need not be based on certainty, but may be based on probability; the lack of absolute scientific certainty does not deprive the opinion of evidentiary value. [Citation.]’ [Citation.]” (Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 121.)
On the other hand, the thin evidence presented by plaintiff was insufficient to create a triable issue of material fact. Plaintiff filed only his declaration and it merely states that he did not have a stroke “prior to the [one he] suffered while incarcerated [in] the Orange County [j]ail.” Plaintiff was required to proffer expert testimony to show causation.
“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.]” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) “‘“[W]hile the court in determining a motion for summary judgment does not ‘try’ the case, the court is bound to consider the competence of the evidence presented.” [Citation.]’ [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525-526.) “‘It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.’ [Citation.]” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108.) And plaintiff may not rely on the complaint as evidence in opposition to the motion. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7 [party may not use own pleadings in support of or opposition to motion for summary judgment].) Further, while we question whether it is appropriate for a party to submit his or her own discovery answers, plaintiff’s conclusory responses that defendants denied him access to doctors and medication do not show causation.
To defeat summary judgment, plaintiff was required to “make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.]” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10-11; see also College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 720 & fn. 7 [party opposing summary judgment must present triable issue by affidavits, declarations, admissions, or other competent evidence].) Where the opposition is merely supported by assertions that are “conclusionary, argumentative or based on conjecture and speculation, ” it is insufficient to preclude summary judgment. (Wiz Technology, Inc. v. Coopers & Lybrand, supra, 106 Cal.App.4th at p. 11.)
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
WE CONCUR: O’LEARY, J., MOORE, J.