Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 39409
MORRISON, J.
Plaintiff Troy Magarrelle was attacked and stabbed several times while an inmate at High Desert State Prison. Acting as his own attorney, he filed suit against Garrett Electronics, Inc., the manufacturer of a metal detector used at the prison, alleging design defect in the product. Magarrelle appeals from a judgment in favor of defendant after the trial court granted Garrett’s motion for summary judgment. He contends, as a pro per inmate plaintiff, he was denied access to the courts and the trial court erred in granting summary judgment and denying his motion for a continuance. He also objects to the use of temporary judges and the award of costs.
We find no prejudicial error and affirm. Magarrelle had adequate access to the court; he filed numerous motions and the case was decided on the basis of written motions. The granting of summary judgment was proper because Magarrelle’s deposition answers indicated he had no evidence to show causation. His motion for a continuance was really an attempt to relitigate previously decided discovery motions. He has not properly raised the issue and has failed to provide an adequate record for review. No error appears as to the use of temporary judges or the award of costs.
FACTUAL AND PROCEDURAL BACKGROUND
Magarrelle filed his first complaint in May 2004. He also requested appointment of counsel and appointment of a private investigator and paralegal. These requests were denied. Garrett’s demurrer to the complaint was sustained with leave to amend.
The record does not contain this complaint.
In September 2004, Magarrelle filed an amended complaint. The complaint alleged Magarrelle was a prisoner at the High Desert State Prison in Susanville, California. On the afternoon of February 2, 2003, Magarrelle was in the controlled environment of the administrative segregation yard (ad-seg) at the prison. He was jumped from behind and stabbed 20 times by two other inmates. Before an inmate is allowed into the yard, he is subject to a strip search, followed by wanding with a hand-held metal detector made by Garrett Electronics to ensure no weapons are allowed into the yard. Despite the use of the metal detector, three people had weapons in the yard that day. Among the weapons were a seven-inch metal knife and a seven-and-a-half inch metal weapon. The complaint alleged Garrett’s SuperScanner metal detector did not detect metal and was a substantial factor in Magarrelle’s significant injuries. The Garrett SuperScanner was defective in design and manufacture because it did not detect metal.
Garrett’s demurrer to the amended complaint was overruled. The trial court found the amended complaint stated a cause of action for personal injury as a result of design defect. The court found the form of pleading was “ponderous, verbose, rambling” and contained inappropriate matter. Therefore, because an allegation by allegation denial would be impossible, Garrett could file a general denial. The court granted Garrett’s motion to strike the request for punitive damages.
There were numerous disputes over discovery. On January 21, 2005, the court issued what it termed “‘a warning shot across the bow.’” It advised both parties “to respond in a meaningful manner to all written discovery.” The disputes did not cease. For example, in September 2005, the court ordered Garrett to submit complete responses to Magarrelle’s interrogatories. Magarrelle moved to compel the written deposition of Garrett, which Garrett opposed.
In March 2006, Garrett moved for summary judgment, contending Magarrelle could not prove the Garrett SuperScanner was a substantial cause of his injuries and Magarrelle had no competent evidence that the Garrett SuperScanner was defective. Garrett argued Magarrelle’s contentions that the SuperScanner caused his injuries or was defective was based on nothing more than guesswork and speculation. To establish a technical product is defective, a plaintiff must offer expert testimony under the risk-benefit test. Garrett asserted Magarrelle could not prove that the Garrett SuperScanner was actually used that day, which model was used, and, if used, that it was used properly. Further, Magarrelle could not prove the weapons used in the attack were secreted on the perpetrators’ persons rather than elsewhere in the yard.
In support of its motion, Garrett offered Magarrelle’s deposition. Magarrelle testified he had been incarcerated for over 10 years. He was transferred to this prison because he was an instigator of racial unrest in the previous prison. He had previously been transferred to the security housing unit (SHU) at Corcoran because he stabbed another inmate in 1999. He claimed he was a validated member of the Aryan Brotherhood and “ran this prison.” He believed his stabbing was part of a power struggle.
Magarrelle described the strip search before he entered the yard. He saw his assailants, but no one else, also get wanded before they entered the yard. Magarrelle claimed he had concealed weapons that were not detected by a Garrett product 100 times. He had never set off a metal detector while carrying a concealed weapon. The longest weapon he had successfully concealed was four inches long.
Magarrelle also had experience with an Adams model metal detector and another style; he would not try to conceal a weapon when those detectors were being used. He described in detail the process for wrapping and concealing a weapon so the Garrett detector would not detect it.
Garrett also provided the declaration of Robert Podhrasky, the engineering director of Garrett. He stated the Garrett SuperScanner was first designed in 1984 and had been redesigned twice. It exceeded the specifications of the National Institute of Justice and the Federal Bureau of Prisons. The SuperScanner could scan a 10-inch surface and detect a pistol at nine inches, a knife at six inches, a razor blade or box cutter at three inches, and foil-wrapped drugs or jewelry at one inch. It was designed as an accessory to a walk-through detector. Company records revealed no direct sales to High Desert State Prison and two other companies made similar detectors. The SuperScanner was routinely used by the medical community to identify coins and other items that had been ingested. Water does not interfere with its use.
Magarrelle opposed the motion for summary judgment. He argued Garrett failed to show he could not acquire the evidence necessary to prove his cause of action. He asserted an ordinary consumer expects safety from metal weapons when a metal detector is in use.
In support of his opposition, Magarrelle provided his declaration. He had been in prison for 18 years, over 10 of which were spent in ad-seg or SHU. He was also a certified executive security specialist and had received training in the SuperScanner. He had personally gotten a weapon past the SuperScanner 100 times. He was positive that a Garrett SuperScanner was used the day of the attack; he saw himself and his assailants being scanned.
Magarrelle objected to Podhrasky’s declaration, contending it did not carry the proper time and date of the hearing, contained matters not based on personal knowledge and had “not been requested for judicial notice.” He also moved for a continuance, contending that Garrett had failed to provide discovery.
Magarrelle misunderstands the role of judicial notice. It is not necessary to request judicial notice of documents filed with the court or authority cited therein. Magarrelle requests this court take judicial notice of such items. We are, of course, required to take judicial notice of the laws of California and the United States. (Evid. Code, § 451, subd. (a).)
In response, Garrett claimed Magarrelle’s opposition to the separate statement of undisputed facts was procedurally defective.
The trial court denied the motion for a continuance. It found there were no outstanding discovery motions before the court and Magarrelle had had sufficient time to conduct discovery. Magarrelle’s claim that he was denied discovery was unfounded; he was attempting to reargue matters already decided. Magarrelle failed to show that a continuance would permit him to obtain evidence to refute summary judgment; he simply claimed Garrett had not answered discovery to his satisfaction. He failed to specify why further time was needed or to outline the discovery steps he proposed to take.
The court found Magarrelle’s statement of undisputed facts did not comply with court rules; it failed to set forth the evidence to dispute Garrett’s undisputed material facts. The court overruled objections based on judicial notice, hearsay and relevance. The court also overruled Magarrelle’s objection to Podhrasky’s declaration, in particular noting that the challenges to the accuracy of Podhrasky’s statements were not supported by evidence.
The court granted the motion for summary judgment; it found Magarrelle could not establish a design defect and causation was lacking.
Magarrelle objected to the court’s findings and order. The objection was overruled because it failed to comply with the rules for a motion for reconsideration.
Magarrelle then moved to strike the findings and order and for a new trial. This motion was summarily denied.
Judgment was entered in favor of Garrett and Garrett was awarded costs. Magarrelle appealed.
DISCUSSION
I. Magarrelle’s Status as a Pro Per Incarcerated Plaintiff
Like his amended complaint, Magarrelle’s brief is “ponderous, verbose, rambling” and contains inappropriate matter. A primary complaint is that, as a pro per incarcerated plaintiff, he was denied access to the courts. Because he was not able to appear even by telephone, he contends all the hearings were ex parte and denied him due process. We begin by recounting the right of an incarcerated plaintiff to access to the courts and the standards to which pro per plaintiffs are held.
“An indigent prisoner who is a defendant in a bona fide civil action threatening his or her personal or property interests has a federal and state constitutional right, as a matter of due process and equal protection, of meaningful access to the courts in order to present a defense. [Citations.]” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792.) In California, an inmate has a statutory right to initiate a civil action. (Pen. Code, § 2601, subd. (d).) He does not, however, ordinarily have the right to be present in court. (Payne v. Superior Court (1976) 17 Cal.3d 908, 920.) Courts should devise alternative means to ensure prisoners “meaningful” access to the courts. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642; Wantuch v. Davis, supra, at p. 792.)
In both Hoversten and Wantuch, the inmate lost the case because he did not appear in court. (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 639; Wantuch v. Davis, supra, 32 Cal.App.4th at p. 791.) That is not the situation here. At this stage, the case proceeded on the basis of written motions. The clerk’s transcript on appeal is over 2,000 pages, most of which are filings by Magarrelle. It can hardly be said he was denied access to the court. Further, on appeal, we review the ruling on the summary judgment motion de novo. (Merrill v. Naveger, Inc. (2001) 26 Cal.4th 465, 476.) As there is no reporter’s transcript, we will consider only the written material and nothing that occurred at any hearing. Magarrelle had meaningful access to the court to pursue his case.
Because we find Magarrelle had meaningful access at this point in his case, we need not address his contention that a pro per inmate cannot use Court Call, Lassen County’s telephonic appearance program (Super. Ct. Lassen County, rule 6), because it requires a credit card and inmates are forbidden to possess credit cards.
Magarrelle also complains that the court at times ruled against him because he failed to comply with court rules or proper procedure. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
We recognize the difficulty a layman, incarcerated or not, faces when he attempts to litigate a civil action. The constitutional right to appointment of counsel, however, has never been applied to a plaintiff in a civil action, “bent on the procurement of a judgment for the payment to him of money in the way of damages as against some other person or persons as defendant or defendants.” (Rhodes v. Houston (D. Neb. 1966) 258 F.Supp. 546, 578.) We note that personal injury cases are the type most frequently taken by attorneys on a contingency fee basis.
In arguing his procedural missteps should not be held against him, Magarrelle relies on Haines v. Kerner (1972) 404 U.S. 519 [30 L.Ed.2d 652], in which an inmate’s pro se civil rights complaint was dismissed for failure to state a cause of action, primarily on the basis that courts do not inquire into the internal operations of prisons. The Supreme Court reversed, holding the inmate should be allowed to present evidence on his claims. “We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ [Citations.]” (Id. at p. 520-521.) Here, the trial court overlooked pleading deficiencies in the amended complaint, found it stated a cause of action for personal injury due to design defect, and allowed the case to go forward. Magarrelle was given the opportunity denied the plaintiff in Haines.
In his reply brief, Magarrelle contends the trial court should have complied with the Hudson rule, that requires “as a bare minimum,” that a court provide a pro per inmate “with fair notice of the requirements of the summary judgment rule.” (Hudson v. Hardy (D.C. Cir. 1968) 412 F.2d 1091, 1094.) In Klingele v. Eikenberry (9th Cir. 1988) 849 F.2d 409, 411, the Ninth Circuit declined “to erode the Hudson rule by allowing district courts to avoid giving the required advice based on a determination that a prisoner has the requisite sophistication in legal matters.”
Magarrelle cites no authority, and we have found none, that the Hudson rule or anything similar has been adopted or is required in California. (See Williams v. Browman (6th Cir. 1992) 981 F.2d 901, 903-904 [no rule in Sixth Circuit requiring notice to pro se party of the requirements to defeat summary judgment]; Robertson v. Lewis (Tenn. 2007) __ S.W.2d ___ [2007 Tenn.App. LEXIS 276] [no Hudson rule in Tennessee].) Further, since Magarrelle attempted to oppose summary judgment by submitting his declaration, it cannot be said he was unaware of what he needed to do. (Startz v. Cullen (2d. Cir. 1972) 468 F.2d 560, 562.)
II. Summary Judgment Motion
Magarrelle’s main contention, expressed several ways, is that the trial court erred in granting summary judgment. He contends Garrett did not establish that his cause of action had no merit. Rather, Garrett proved only that Magarrelle was unable to present evidence to establish the cause of action. The reason he was unable, Magarrelle asserts, is that Garrett failed to respond properly to discovery and the trial court failed to enforce discovery rulings.
“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant meets his burden of showing a cause of action has no merit if he shows that one or more elements of that cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).)
Magarrelle’s sole cause of action was for personal injury due to design defect. “[A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.) “[I]n a strict products liability case based on design defect, the plaintiff has the burden of establishing that the injury was caused by the product’s design, and that once this prima facie showing is made, the defendant must then prove that the product is not defective.” (Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, 497.)
A cause of action for strict products liability may also be based on a failure to warn. (Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695.) Magarrelle’s amended compliant does not allege a failure to warn. Since the pleadings define the issues to be considered on a motion for summary judgment (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055), Garrett’s motion for summary judgment did not need to address failure to warn.
Garrett moved for summary judgment on the grounds that Magarrelle’s contention that a defective SuperScanner caused his injuries was based on only conjecture and guesswork. Garrett contended Magarrelle could not demonstrate (1) what model of Garrett SuperScanner was used and that a Garrett SuperScanner was actually and properly used to wand the assailants before they entered the yard; and (2) that the weapons used in the attack were secreted in the assailants’ body cavities, not elsewhere, and thus passed undetected by the Garrett SuperScanner. Garrett asserted there were endless possibilities for how the weapons got into the prison.
Garrett relied on Magarrelle’s deposition to show that he could not prove his case. Magarrelle testified a Garrett SuperScanner was used that day to scan him and his assailants before entering the yard; he saw the Garrett name in two-inch letters. Magarrelle also testified he had been scanned with other hand-held metal detectors, one made by Adams and another style.
Garrett seized upon this testimony to show that Magarrelle could not establish a Garrett product was in use that day. Magarrelle complains bitterly that Garrett is misconstruing his testimony. We agree. Magarrelle had evidence--his eyewitness account--that a Garrett SuperScanner was used to wand his assailants before they entered the yard. Garrett failed to refute--or even dispute--this evidence. Podhrasky’s declaration that there were no sales records to High Desert State Prison did not establish a Garrett product was not used. The sales could have been to the Department of Corrections or the State of California.
More problematic for Magarrelle is the element of causation. In an action for strict products liability, a plaintiff must show the defective product caused injury. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 415.) Magarrelle lacked evidence that the assailants hid the weapons on their bodies and thus got them past the wanding with the Garrett SuperScanner. Magarrelle testified in his deposition that he had no personal information about how the weapons got into the yard. He did not see them placed in or retrieved from the assailants’ rectums and had no information that anyone else saw that. Instead, Magarrelle relied on his belief that “you cannot get a weapon that large out to the yard any other way.” “In essence, the plaintiff is asking that the doctrine of res ipsa loquitur be applied when considering the propriety of the order granting the motion for summary judgment. That doctrine is not applicable in any action predicated upon the theory of strict liability. [Citation.]” (Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 565.) Although Magarrelle claimed he was able to get secreted weapons past the Garrett SuperScanner many times, the largest weapon he had successfully hidden was four inches in length. The weapons used in the attack were seven- and seven-and-a-half inches long.
Absent evidence that these weapons were secreted past the Garrett SuperScanner, Magarrelle cannot establish any defect in the SuperScanner was a substantial contributing factor to his injury. (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 127.) “If the conduct which is claimed to have caused the injuries had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.” (Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861.)
The trial court did not err in granting Garrett’s motion for summary judgment.
Because we find summary judgment was proper based on Magarrelle’s deposition, we need not address Magarrelle’s objections to Podhrasky’s declaration.
III. Motion for Continuance
Magarrelle contends the trial court abused its discretion in denying his motion for a continuance to obtain additional discovery to defeat Garrett’s motion for summary judgment.
Code of Civil Procedure Section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both 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.” “The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253.)
A declaration in support of a request for a continuance of a summary judgment motion must show: “(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. [Citations.]” (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) “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.)
As the trial court found in denying the motion for a continuance, Magarrelle’s motion did not set forth new facts needed to oppose the summary judgment motion, why such facts had not been discovered, and steps he intended to take to discover them. Rather, he argued that previous discovery had not been answered to his satisfaction. His motion for a continuance was an attempt to relitigate previous discovery motions, not a request to conduct new discovery. Because Magarrelle’s motion did not meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the trial court was not required to grant the continuance. (Cooksey v. Alexakis, supra, 123 Cal.App.4th 246, 253.)
It is not an abuse of discretion to deny a continuance to oppose a summary judgment motion where there has been ample time for discovery. (Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, 127.) Here, Magarrelle initially filed the complaint in May 2004 and sought a continuance in May 2006. He had two years to complete discovery. We find no abuse of discretion in denying the motion for a continuance.
On appeal Magarrelle attempts to reargue discovery motions he lost below. He has not properly raised these issues. (See Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17 [refusing to address argument appearing under subheading inappropriate to that argument]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [“The failure to head an argument as required by California Rules of Court . . . constitutes a waiver.”].)
Further, most of the discovery motions that Magarrelle attempts to reargue do not address the issue of causation, but rather Garrett’s ownership and design of the metal detector used the day of the incident. Therefore, even if Magarrelle had discovery to his satisfaction on these points, he could not survive the summary judgment motion. Magarrelle does object to the refusal of the Department of Corrections (now Department of Corrections and Rehabilitation) to comply with his subpoena for certain information. The trial court granted the Department’s motion to quash. Even if this issue were properly raised, we could not review it. The record does not contain the Department’s motion to quash, only Magarrelle’s opposition, so we cannot tell on what basis the Department moved to quash and whether it was meritorious. “Under well-established rules of appellate procedure, we presume the court's order is correct and indulge all presumptions and intendments in its favor on matters as to which the record is silent. [Citation.]” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)
IV. Use of Temporary Judges without Stipulation
Magarrelle complains about who heard his motions. He contends that while the presiding judge of Lassen County Superior Court heard and ruled on motions by Garrett and others, when he filed a motion, the judge “shirked his judicial duties and pawned the case off to a temporary judge.” He contends the court violated California Constitution, article VI, section 21, by using temporary judges without a stipulation.
California Constitution, article VI, section 21 provides: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”
The record is inadequate to review this contention. Magarrelle cites three specific motions. None of these motions is in the record on appeal. As appellant, it is Magarrelle’s burden to furnish us with a record that is adequate to review the merits of the contentions on appeal. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575,; Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 474.) To the extent Magarrelle is contending the trial court did not give proper consideration to his case, we reject the contention. The record includes several lengthy rulings, addressing in detail Magarrelle’s various motions.
The ruling on one of these motions, Magarrelle’s motion for reconsideration and recusal, is in the record. The motion was denied and Magarrelle was advised of the need to “do a proper peremptory.”
Magarrelle also objects that rulings on a number of pending motions were continued. These motions were then ruled on by Judge Ersel Edwards. Judge Edwards is a judge from Nevada County, not a temporary judge. (California Courts and Judges (2005 ed.) p. 296.) Magarrelle did not move to challenge the judge under Code of Civil Procedure section 170.6. He cannot now complain because he does not like the rulings.
V. Award of Costs
Under Code of Civil Procedure section 1032, a prevailing party, including a defendant where the plaintiff obtains no relief, is entitled to an award of costs. The trial court awarded Garrett costs. Magarrelle objects, claiming “this is about the most asinine, and/or, funny thing the plaintiff has ever heard!” He contends he has no money and in fact still owes hundreds in court costs for his criminal cases.
An award of costs is reviewed for an abuse of discretion and will not be overturned on appeal unless “clearly wrong.” (El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617.) Garrett was clearly the prevailing party and section 1032 does not require an assessment of ability to pay before awarding costs. Accordingly, we find no abuse of discretion in the award of costs.
DISPOSITION
The judgment is affirmed. Garrett is awarded costs on appeal.
We concur: DAVIS, Acting P.J., HULL, J.