Opinion
E073636
04-29-2021
ARCHER HUDSON, Plaintiff and Appellant, v. LOMA LINDA UNIVERSITY HEALTH et al, Defendants and Respondents.
Archer Hudson, in pro. per., for Plaintiff and Appellant. LaFollette, Johnson, DeHaas, Fesler & Ames, Dennis K. Ames, Michael D. Reid, Melissa E. Fischer, and Danielle M. VandenBos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1714152) OPINION APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed. Archer Hudson, in pro. per., for Plaintiff and Appellant. LaFollette, Johnson, DeHaas, Fesler & Ames, Dennis K. Ames, Michael D. Reid, Melissa E. Fischer, and Danielle M. VandenBos for Defendants and Respondents.
Plaintiff and appellant Archer Hudson (Plaintiff) appeals the grant of summary judgment in favor of defendants and respondents Loma Linda University Health (Loma Linda) and Kaushik Mukherjee, M.D. Plaintiff filed suit against Loma Linda and Dr. Mukherjee (collectively, Defendants) for medical negligence stemming from a laparoscopic sigmoidectomy surgery performed on his bowels to remove blockages. Plaintiff claims that as a result of Dr. Mukherjee's negligence during surgery, and postoperative care rendered by other staff at Loma Linda, he suffered kidney damage, incontinence and erectile dysfunction (ED). He filed suit against Defendants. The trial court granted the motion for summary judgment brought by Defendants on the ground that Plaintiff had failed to establish a triable issue of fact on his medical negligence claim.
Plaintiff claims on appeal that there were triable issues of fact as to his causes of action for medical negligence. He also insists that there were triable issues of fact for causes of action of concealment and RICO racketeering. He also was entitled to a continuance on the day that the motion for summary judgment was heard to obtain a medical expert. We conclude the motion for summary judgment was properly granted.
FACTUAL AND PROCEDURAL HISTORY
We state the facts from the record that were before the trial court when it made its summary judgment ruling. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
Plaintiff, who was 71 years old at the time, went to Loma Linda on June 25, 2016, complaining of abdominal pain and that he had not had a bowel movement for four days. A CT scan of his abdomen was requested and revealed a narrowing of the sigmoid colon with distention of the proximal colon. On June 28, 2016, he underwent a laparoscopic sigmoidectomy with primary anastomosis and lysis of adhesions. Plaintiff was advised it would be a short surgery. Surgery was performed by Dr. Mukherjee and he was assisted by Dr. A'Artagnan Debow. Dr. Mukherjee summarized the surgery as follows: "We . . . turned our attention to the distal sigmoid. There was a tight band here that we spent about 20 minutes trying to take down. We inserted an additional 5mm port in the left lower quadrant to help. However we were unable to. Therefore we elected to start with a Pfannenstiel incision to excise the specimen. [¶] We made a Pfannenstiel incision and used the electrocautery to come down through the soft tissue. We came through the midline fascia and entered the abdominal cavity. We inserted a wound protector device. [¶] We were able to deliver the specimen into the wound. We used the Ligasure to take down some of the mesenteric attachments. We then were able to come across the distal descending colon. We used a 45mm blue load from the endo GIA stapler. Unfortunately the first load misfired, resulting in the bowel being cut but not stapled. We covered the sigmoid with a lap to minimize contamination. We then re-fired the stapler to transect the specimen. We placed a stay suture on the descending colon. [¶] We then ran the enterotomy closed with a 3-0 vicryl running suture. [¶] We then continued to use the Ligasure to take down the mesentery going toward the rectum. We identified our distal resection margin and came across this with multiple fires of the 45mm blue load endo-GIA stapler. We then used the Ligasure to come through the rest of the mesentery. We passed the specimen off the field. [¶] We then irrigated out the wound. We found that there was a good tension free lay as far as the descending colon and the rectum. We placed 3-0 vicryl stay sutures. We created enterotomies in the two bowel loops but this resulted in a lot of stool leaking out. We suctioned out all the contamination and controlled it. We then passed the endo-GIA 45 mm blue load and fired it, creating an anastomosis. We closed the enterotomy with a 3-0 PDS running suture. We imbricated the enterotomy closure with 3-0 vicryl sutures. [¶] We were satisfied with anastomosis. We changed our gowns and gloves and irrigated out the abdomen with multiple liters of warm saline. [¶] We then made sure the wound was hemostatic. [¶] We closed the fascia with #1 PDS running sutures x 2. We irrigated out the subcutaneous tissue. We closed the skin and the laparoscopic port sites with staples. [¶] Sponge, needle and instrument counts were correct x 2 at the end of the procedure. There were no complications."
Immediately after the surgery, regular bowel function took time to normalize. When Plaintiff regained normal bowel function, he was ready to be discharged. He was on a regular diet at the time of his discharge on July 12, 2016, and was given wound care instructions. Home health care would be provided to help with wound care. He was to return for an appointment in one week.
On July 20, 2016, Plaintiff had a follow-up appointment. He was doing well and did not complain of any complications. He had a home-health nurse who continued to care for his wound and it was recommended that he be provided continued wound care. He was prescribed additional Oxycodone for pain. The incision wound was healing and he was having regular bowel movements. He had another appointment on August 3, 2016. Plaintiff had no specific complaints. He had no problems with the wound. Bowel movements had been loose to solid. He was eating well. The Oxycodone prescription was refilled.
On August 17, 2016, seven weeks after the surgery, Plaintiff complained at a follow-up appointment of alternating diarrhea and constipation. He occasionally had shooting pains in his abdomen. It was recommended he stop taking the Oxycodone as a possible side effect was alternating diarrhea and constipation.
On September 7, 2016, at a follow-up appointment, Plaintiff reported he was eating a regular diet without any problems. His incision was completely healed and his pain was controlled without medication. No further home health care was required. Plaintiff reported episodes of incontinence since the surgery but stated he had experienced intermittent bowel incontinence following a stroke six years prior. Plaintiff had expected it to be better after the surgery.
B. PROCEDURAL HISTORY
1. THIRD AMENDED COMPLAINT
On August 18, 2018, Plaintiff filed his third amended complaint (TAC) against defendants. Plaintiff alleged that Dr. Mukherjee was employed at Loma Linda as a surgeon. Plaintiff's causes of action included negligence, intentional misrepresentation, and negligent misrepresentation. For all of the causes of action, he presented the facts that he was advised by Dr. Mukherjee that he had several knots in his colon. Dr. Mukherjee recommended a short surgery during which the knots would be removed; such surgery would only take approximately 20 minutes. The surgery lasted longer than anticipated and during the surgery an endo-GIA stapler misfired and cut his colon. The cut was repaired and the stapler correctly fired the second time.
Plaintiff's original complaint was filed on July 25, 2017. It was dismissed without prejudice after defendants filed a demurrer. He filed an amended first and second complaint, which were both dismissed without prejudice. These complaints have not been included in the record on appeal.
Plaintiff claimed as a result of the surgery that he suffered kidney damage, incontinence and erectile dysfunction (ED). He complained that Dr. Mukherjee did not attend any of plaintiff's postoperative appointments. He also claimed the endo-GIA staplers had been recalled in 2012 and 2014 and no hospital would reasonably use them. Plaintiff admitted having a stroke six years prior, which had caused partial ED and incontinence. He claimed he did not receive proper care after the surgery by other Loma Linda doctors. As a result of the negligence by Dr. Mukherjee and the other doctors, Plaintiff had kidney damage. The surgery also exacerbated his existing incontinence and ED.
Plaintiff also alleged "res ipsa loquitor" insisting the conduct and omissions by defendants was presumed because (1) the cut colon would not have happened unless someone was negligent; and (2) the cut colon was controlled by something only the defendants controlled. He alleged that Dr. Mukherjee misdiagnosed his medical situation; misfired the Endo stapler; cut his bowels; failed to follow up with proper treatment; and failed to properly supervise those who followed up for him.
Plaintiff included as an exhibit to the TAC a curriculum vitae for Dr. Moses J. Fallas who was an expert hired by Defendants. Plaintiff did not provide an opinion from his own medical expert. A demurrer to the TAC was apparently filed by defendants and it was sustained as to the second and third causes of action. The only remaining cause of action against defendants was medical negligence.
2. SUMMARY JUDGMENT MOTION
Defendants filed their notice of motion and motion for summary judgment on the TAC on March 29, 2019 (Motion). Their motion was based on the fact they complied with the standard of care required with respect to Plaintiff's care and to a reasonable degree of medical probability, no act or omission by defendants caused or contributed to Plaintiff's injuries. The Motion was based on the declaration of Dr. Fallas, the undisputed material facts, and documentary evidence.
Defendants alleged that Plaintiff had filed numerous complaints and there had been demurrers and motions to strike filed. The only cause of action that remained was medical negligence. Defendants argued the declaration from Dr. Fallas supported that the care and treatment of Plaintiff was within the standard of care. The burden was shifted to Plaintiff to establish a triable issue of material fact by providing competent expert testimony.
According to his declaration, Dr. Fallas was a medical doctor board certified in general surgery. Dr. Fallas had reviewed Plaintiff's medical records. Dr. Fallas concluded, after reviewing the records, that Loma Linda, including its employees, and Dr. Mukherjee, "complied with the standard of care at all times in their care and treatment of plaintiff, Archer Hudson." The laparoscopic sigmoidectomy was the appropriate procedure for Plaintiff's condition and was performed within the standard of care. Further, the use of the endo-GIA stapler was appropriate. Misfiring of the endo-GIA stapler was a known risk of the surgery and occurred in the absence of negligence. Dr. Mukherjee appropriately addressed the cut to the colon by covering it with a lap. No further care was required. Plaintiff was appropriately advised of the risks of his surgery.
Dr. Fallas also provided that after the surgery, there was no misdiagnosis or delay in Plaintiff's treatment and it was appropriate for other physicians to care for him. Plaintiff's kidney disease was not the result of anything that occurred during his surgery or during his postoperative care. Additionally, to a reasonable medical probability, the misfiring of the endo-GIA stapler resulting in the bowel being cut did not cause or contribute to Plaintiff's injuries including kidney damage, incontinence of bladder and bowel, and ED.
Defendants attached Plaintiff's medical records to the Motion, which had been reviewed by Dr. Fallas.
Defendants filed a separate statement of undisputed material facts. This included the facts that Defendants complied with the standard of care at all times in the care and treatment of Plaintiff, and that to a reasonable degree of medical probability, no act or omission by Defendants contributed to the injury of Plaintiff.
3. PLAINTIFF'S OPPOSITION TO THE MOTION
Plaintiff filed opposition to the motion for summary judgment. He also provided his own separate statement of undisputed material facts and exhibits. Plaintiff objected to Dr. Fallas's declaration because he was not present during the surgery, his opinions were hearsay and he was not qualified. Plaintiff essentially repeated the facts and allegations from the TAC. Plaintiff's legal argument in the opposition was confusing, raising issues of respondeat superior and res ipsa loquiter. In conclusion, Plaintiff claimed the attached exhibits demonstrated a triable issue of fact that Loma Linda and their medical personnel did not comply with the standard of care and that he suffered injuries. He requested that the court deny the Motion. Plaintiff also mentioned that he needed a continuance to obtain an expert, citing to Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398.
"The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.)
Attached to the opposition, Plaintiff included his own declaration that he had personal knowledge of the facts and could testify if called as a witness. He submitted three other exhibits.
Exhibit B consisted of medical records from Loma Linda detailing Plaintiff's admission and the surgery by Dr. Mukherjee, which have already been detailed in the statement of facts ante. Exhibit C was his laboratory tests. Exhibit D was the postoperative report prepared by Dr. Mukherjee.
For his separate statement of facts, Plaintiff stated "See page 2 and statement of facts pages 3-8 of opposition to summary judgment see declaration of Plaintiff see exhibits A-D." He gave the same response to the undisputed material facts provided by Defendants. Plaintiff did not provide a declaration from a medical expert.
4. REPLY TO OPPOSITION
Defendants filed a reply to Plaintiff's opposition. Defendants responded that the Motion should be granted as the only remaining cause of action was medical negligence. As such, Plaintiff was required to show through the use of expert testimony that Defendants breached the standard of care and such breach of the standard of care caused his injuries. Plaintiff had failed to provide an expert or any admissible evidence that would create a triable issue of fact.
Defendants argued they had provided the declaration of a board certified general surgeon, Dr. Fallas. Dr. Fallas stated that Defendants complied with the standard of care required in their treatment of Plaintiff. Dr. Fallas's opinion was supported by medical records from Loma Linda. The burden shifted to Plaintiff to provide competent, expert testimony on these issues. Plaintiff provided no expert declaration in support of his opposition. Plaintiff had failed to prove there was a triable issue of material fact as to the standard of care and causation.
Defendants objected to Plaintiff's separate statement of undisputed material facts based on hearsay, lack of foundation and authentication, and improper expert opinion. Further, Plaintiff's declaration could not support causation or standard of care because he was not a medical expert.
Defendants objected to any argument that was raised in the opposition filed by Plaintiff that he was entitled to a continuance to obtain an expert pursuant to Code of Civil Procedure section 437c, subdivision (h). Defendants argued that Plaintiff's first action was filed in July 2017, and the failure to obtain an expert was a willful and deliberate decision made by Plaintiff. Further, the request for a continuance was procedurally deficient. Defendants objected to Plaintiff's separate statement on the grounds that Plaintiff's supporting evidence was irrelevant and improper expert opinion. They also filed objections to Plaintiff's separate statement on the same grounds. Defendants also objected to the declaration submitted by Plaintiff "as improper expert opinion, lacks foundation, lacks personal knowledge and calls for speculation."
5. RULING
The Motion was granted on June 19, 2019. There is no oral record of the hearing on the Motion and no ruling in the record on the evidentiary objections. The only evidence of the ruling is the order granting summary judgment signed by the court on June 17, 2019, which provided as follows: "After full consideration of the moving papers and oral argument made by counsel at the time of the hearing, the Court finds that moving defendants have shown by admissible evidence and reasonable inferences therefrom that there is no triable issue of fact with respect to defendants. Defendants are entitled to summary judgment as a matter of law as they complied with the standard of care in their treatment of plaintiff, Archer Hudson, and that no act or omission on their part caused or contributed to the injury of plaintiff, Archer Hudson."
The hearing on the Motion has not been made part of the record. Plaintiff chose to proceed without the oral record.
6. MOTION FOR RECONSIDERATION
On June 28, 2019, Plaintiff filed a motion for reconsideration. Plaintiff declared he had new causes of action for concealment and general negligence. He also claimed the trial court erred by denying a continuance to obtain a medical expert. He did not know that he needed to obtain a medical expert. As evidence, he attached his own declaration that his Exhibit B was not presented with his TAC because he believed he did not need an expert. He believed in good faith he did not need a medical expert. The medical exhibits and summary of facts supported a general negligence claim. There is no Exhibit B in the record and it is not clear what Plaintiff was referring to. On August 19, 2019, the trial court denied the motion for reconsideration.
The hearing on the motion for reconsideration was not made part of the original appellate record.
DISCUSSION
A. STANDARD FOR SUMMARY JUDGMENT
"A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment must prove the action has no merit. He does this by showing one or more elements of plaintiff's cause of action cannot be established or that he has a complete defense to the cause of action. At this point, plaintiff then bears the burden of showing a triable issue of material fact exists as to that cause of action or defense." (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar).) "A trial court may only grant a motion for summary judgment if no triable issues of material fact appear and the moving party is entitled to judgment as a matter of law." (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
If the moving defendant meets its burden of showing evidence "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. . . . the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 849.) "[A] party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.' " (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
"In ruling on the motion, the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) Our review of the summary judgment is de novo. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
B. MEDICAL NEGLIGENCE
As noted by Defendants, the Motion was granted on the basis that Plaintiff had failed to establish a triable issue of fact on the issue of medical negligence. Plaintiff contends the medical records and his own declaration support that Defendants did not comply with the standard of care.
"Generally, 'negligence' is the failure to exercise the care a reasonable person would exercise under the circumstances. [Citation.] Medical negligence is one type of negligence, to which general negligence principles apply." (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694.) "The elements of a medical malpractice claim are: ' " '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' " ' " (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.) "Both the standard of care and [a defendant's] breach must normally be established by expert testimony in a medical malpractice case." (Id. at p. 467, fn. omitted.)
"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.) Similarly, "[c]ausation must be proven within a reasonable medical probability based upon competent expert testimony." (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; see also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)
" 'Whenever the Plaintiff claims negligence in the medical context, the Plaintiff must present evidence from an expert that the defendant breached his or her duty to the Plaintiff and that the breach caused the injury to the plaintiff.' " (Sanchez v. Kern Emergency Medical Transportation Corporation (2017) 8 Cal.App.5th 146, 153.) 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.' " (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985.)
It is undisputed Plaintiff did not provide a medical expert to contest the findings made by Dr. Fallas in his declaration included with the Motion. Plaintiff relied solely on the medical records and his own statements that he suffered from kidney disease, incontinence, and ED after the surgery. This is insufficient to establish a triable issue of fact and was proper grounds for the trial court to grant the Motion.
Plaintiff insists that Dr. Fallas's statements on the standard of care were inadmissible conclusions and hearsay. He insists that Dr. Fallas was not qualified. However, Dr. Fallas stated that he was a general surgeon, he was familiar with the procedure, and that it was properly performed. He reviewed Plaintiff's medical records in reaching this conclusion. Plaintiff's speculation that Dr. Fallas was not qualified is insufficient to exclude it. Moreover, Plaintiff fails to support his argument by any citation to legal authority. "[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record." (City of Santa Monica v. Adam (2012) 211 Cal.App.4th 266, 286-287.) We may "disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt." (Id. at p. 287.) Plaintiff's failure to provide any relevant legal argument as to why the trial court should have excluded Dr. Fallas's declaration waives the claim on appeal.
Separate from his arguments, Plaintiff provides a list of cases and statutory provisions but does not make any argument as to how these should be applied to his arguments. He cannot support his arguments merely by a recitation of cases without analysis how the cases apply to the instant case. "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own; if they are not raised or supported by argument or citation to authority, [they are . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)
Further, Plaintiff contends his medical records alone support that the medical personnel at Loma Linda did not comply with the standard of care. To the extent that Plaintiff is attempting to invoke the doctrine of res ipsa loquitur, such claim fails. "[T]he common knowledge exception applies if the medical facts are commonly susceptible of comprehension by a lay juror—that is, if the jury is capable of appreciating and evaluating the significance of a particular medical event." (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 7.) The exception applies principally to "situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.)
The medical procedures performed by Dr. Mukherjee were clearly complicated and not within the common knowledge of any layperson. Plaintiff cannot rely on res ipsa loquiter to support his medical negligence claim. The trial court properly granted the Motion on the ground that there was no triable issue of fact regarding medical negligence based on Plaintiff's failure to provide a medical expert opinion in opposition to the Motion.
C. ADDITIONAL CLAIMS
Plaintiff makes further claims in his opening brief that are neither supported by citation to the record nor legal authority. Plaintiff refers to concealment as a cause of action, but it was not plead in the TAC. He insists he was not allowed proper discovery as to the "Does" in this action and that there were additional causes of action of concealment of the Does. He makes claims that Dr. Mukherjee concealed evidence and that Plaintiff was not given all discovery. He also appears to claim that this concealment violated his due process rights. Plaintiff's arguments are not clear and he provides no legal authority for his argument. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach, supra, 149 Cal.App.4th at p. 852.)
Further, Plaintiff refers to discussions that he had with Rikki Martinez, M.D. This is clearly hearsay. Moreover, there is no citation to the record showing that such evidence was properly before the trial court. Plaintiff makes no claim that Dr. Martinez could provide the expert testimony to support his medical negligence claim.
Plaintiff additionally lists additional triable issues, which include RICO racketeering and concealment. He provides numerous facts, most not supported by any citation to the record. The only citation to the record was his own medical records. He lists facts that do not appear to be part of the record. He provides no legal authority. The issues are waived on appeal. (Benach, supra, 149 Cal.App.4th at p. 852.)
D. CONTINUANCE
Plaintiff appears to claim the trial court abused its discretion by refusing to grant him a continuance in order to obtain a medical expert at the Motion hearing. He appears to also claim his motion for reconsideration should have been granted.
"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, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." (Code of Civ. Proc., § 437c, subd. (h).) The party seeking a continuance must submit an affidavit or declaration showing that " '(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.' " (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Continuances are only mandated " ' "upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion." ' " (Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 395.)
"It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show 'facts essential to justify opposition may exist.' " (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) Plaintiff is not entitled to any special treatment in this regard because of his pro se status. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Here, based on the record before this court, Plaintiff did not properly show by affidavit that a continuance was required. Plaintiff first mentioned a continuance in his opposition to the Motion to obtain an expert. However, Plaintiff did not provide that the facts to be obtained were essential to opposing the motion, that such expert testimony existed, or why he needed additional time to obtain these facts. The record does not contain the oral argument on the Motion and the reasons the trial court denied any continuance. The burden is on the party challenging a ruling to provide "an adequate record to assess error." (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) In the absence of the record, we must presume the trial court properly considered the factors in Code of Civil Procedure section 437c, subdivision (h). (Maria P., at pp. 1295-1296 [in the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed.].) We cannot say the trial court erred in denying the continuance.
Plaintiff further seems to claim that his motion for reconsideration was improperly denied as untimely filed. The appellate record provided by Plaintiff only included a minute order, indicating that the motion was heard and denied. The hearing on the Motion was not made part of the record on appeal because Plaintiff chose to proceed without the oral record. When this case was set for oral argument, this court granted Plaintiff's request to submit argument in writing and Defendants were to file written response. Attached to Plaintiff's written argument was the transcript of the oral proceedings on August 19, 2019, the motion for reconsideration. California Rules of Court, rule 8.155(a)(1)(B) provides in pertinent part "At any time, on motion of a party . . . , the reviewing court may order the record augmented to include: [¶] . . . [¶] . . . a certified transcript . . . of oral proceedings not designated under rule 8.130." Augmentation requests "made after a reasonable time has expired from receiving the [appellate] record . . . will be denied absent a strong showing of unusual or unavoidable circumstances giving rise to the delay." (People v. Preslie (1977) 70 Cal.App.3d 486, 492.) Plaintiff does not contend the delay in failing to provide the reporter's transcript was unavoidable, and has not filed a motion to augment the record. As such, it is not properly considered as part of the record on appeal.
We reject Plaintiff's claim as not supported by the record and we presume the trial court properly denied the motion for reconsideration. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)
Even if we were to consider the transcript from the hearing on the motion for reconsideration, the trial court appropriately denied the motion based on defendant failing to present newly discovered evidence to support the motion (see Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 317) and because the judgment had already been entered absolving the trial court of jurisdiction. --------
DISPOSITION
The judgment is affirmed. As the prevailing parties, Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.