Opinion
G056358
09-25-2019
TERESITA C. RODRIGUEZ, Plaintiff and Appellant, v. ABSALOM HEPNER, M.D., Defendant and Respondent.
Teresita C. Rodriguez, in pro. per., for Plaintiff and Appellant. Doyle, Schafer, McMahon, Terrence J. Schafer and Jamie A. Mason for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2016-00843099) OPINION Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed. Teresita C. Rodriguez, in pro. per., for Plaintiff and Appellant. Doyle, Schafer, McMahon, Terrence J. Schafer and Jamie A. Mason for Defendant and Respondent.
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INTRODUCTION
Plaintiff and appellant Teresita C. Rodriguez appeals from the judgment entered after the trial court granted defendant and respondent Dr. Absalom Hepner's motion for summary judgment. We respect Mrs. Rodriguez's wholehearted presentation at oral argument, and we empathize with the serious difficulties she has faced. As we explain, it is the appellant's responsibility to provide us with the record of the proceedings in the trial court and that responsibility has not been met. Therefore, unfortunately, we do not have a record before us that allows us to evaluate the facts and circumstances described by Mrs. Rodriguez. We must therefore affirm.
BACKGROUND
The appellate record is extremely limited. The clerk's transcript consists of (1) the register of actions; (2) two minute orders showing the trial court granted Dr. Hepner's motion for summary judgment; (3) the court's signed order granting summary judgment and entering judgment; (4) the trial court's order sustaining all of Dr. Hepner's objections to evidence Mrs. Rodriguez produced in opposition to the motion for summary judgment; (5) the notice of entry of judgment; (6) the notice of ruling on the motion for summary judgment; (7) judgment in favor of Dr. Hepner on his cost bill in the amount of $1,755; and (8) appellate documents including the notice of appeal, notification of the filing of the notice of appeal, receipt for records and papers, the designation of the record on appeal, and a proof of service.
Our record does not include any pleadings, much less the operative complaint, Dr. Hepner's motion for summary judgment, separate statement, or supporting evidence, or Mrs. Rodriguez's opposition papers.
We note that attached to the notice of appeal is a copy of the declaration of Dr. Alberto Sormillon, signed March 25, 2018. We further note the trial court's minute order dated March 29, 2018 addresses Mrs. Rodriguez's attempt to submit a purported expert declaration in connection with the motion for summary judgment; the minute order does not otherwise identify the author of the declaration. The court sustained Dr. Hepner's objection to the declaration, on the grounds it was untimely filed and had not been served, and struck the declaration. --------
From the appellate briefs and her oral argument, we understand that Mrs. Rodriguez sued several parties in connection with her husband's illness and death and, as pertinent to this appeal, alleged a medical malpractice claim against Dr. Hepner. He filed a motion for summary judgment, which the trial court granted on the following grounds: "The uncontradicted evidence submitted in connection with this Motion establishes without triable issue of fact that the medical care and treatment rendered by Absalom Hepner, M.D. to the decendent, Romeo O. Rodriguez, was at all times within the applicable standard of care in the medical profession. [¶] . . . The uncontradicted evidence submitted in connection with this Motion establishes without triable issue of fact that the medical care and treatment rendered by Absalom Hepner, M.D. to the decedent, Romeo O. Rodriguez, was not a substantial factor in causing the death of this patient." (Some capitalization omitted.)
Judgment was entered in Dr. Hepner's favor. Mrs. Rodriguez appealed from the judgment.
DISCUSSION
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant must affirmatively establish prejudicial error by an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) In the absence of a proper record on appeal, the appealable judgment or order is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
"A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.] Summary judgment 'provide[s] courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' [Citation.] Under '[t]he historic paradigm for our de novo review of a motion for summary judgment . . . [w]e first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party's prima facie case.'" (Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 196-197; see Torres v. Reardon (1992) 3 Cal.App.4th 831, 836 [appellate review "is limited to the facts contained in the documents presented to the trial court"].)
We cannot identify the issues framed by the pleadings because the record does not include any. The record also does not include the motion for summary judgment or its supporting papers and evidence. Accordingly, we cannot determine on this record whether the moving papers established Dr. Hepner's entitlement to summary judgment as to the medical malpractice claim, or any other claim Mrs. Rodriguez might have alleged against Dr. Hepner. Because the record does not include Mrs. Rodriguez's opposition papers, we cannot determine whether Mrs. Rodriguez showed the existence of any triable issues of material fact. The record is therefore inadequate for our review of the order granting the motion for summary judgment.
Mrs. Rodriguez has not attempted to augment the appellate record, even after Dr. Hepner filed his respondent's brief in which he pointed out the record's inadequacy. Mrs. Rodriguez's representation of herself in this appeal does not excuse the inadequacy of the appellate record. "[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Mrs. Rodriguez has not established any reversible error in the judgment.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.