Opinion
A113153
12-14-2006
SIOMA SHAPOCHNIK, Plaintiff and Appellant, v. ALAMEDA COUNTY MEDICAL CENTER, Defendant and Respondent.
Appellant Sioma Shapochnik, in propria persona, contends the trial court erred in granting summary judgment to respondent Alameda County Medical Center, a public entity, on appellants claims for medical malpractice. The trial court granted the motion on the basis that appellant had failed to file an administrative claim against the respondent prior to bringing suit, as required for actions against public entities under the provisions of Government Code section 945.4. We affirm.
All subsequent statutory references are to the Government Code.
I. FACTS AND PROCEDURAL HISTORY
Insofar as we are able to discern, appellant claims that he was treated at the respondent Alameda County Medical Center for an eye problem. According to appellants brief, laser eye surgery provided by respondent was not successful, and he ultimately lost normal vision in his right eye. He subsequently brought this action for medical malpractice.
Respondent moved for summary judgment, on the grounds that appellant had not first filed an administrative claim, as required by Government Code section 945.4 where the action is brought against a public entity, before filing suit. The trial court granted the motion, and entered judgment against appellant.
II. DISCUSSION
A. APPELLANT FAILS TO PROVIDE AN ADEQUATE RECORD FOR REVIEW
Multiple defects in the record appellant has provided, as well as in his briefs, make appellate review difficult at best. The most critical defect is in appellants failure to provide an adequate record of the court trial proceedings he now challenges.
It is axiomatic that an appellant must affirmatively show error by an adequate record. (Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036.) Appealed judgments and orders are presumed to be correct, and an appellant has the burden of overcoming this presumption. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Failure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellant. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
We acknowledge that appellant is proceeding pro se on this appeal. However, "`[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]." (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
Appellants failure to provide an adequate record of the trial court proceedings impairs our ability to review the trial courts ruling that appellant failed to carry his burden in resisting summary judgment. In the absence of a proper and complete record, we must presume the lower courts ruling is correct. (See, e.g., Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
We also find appellants briefing inadequate to demonstrate error. Appellants arguments are unsupported by citation to the record of the proceedings below. Such briefing, complaining of error while lacking properly supported factual contentions or legal theories, is not only insufficient, but justifies rejection of appellants arguments without further discussion on the merits. (See Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689.)
B. SUMMARY JUDGMENT WAS PROPERLY GRANTED.
To the extent that we are able to address the merits we find no error. In reviewing an order granting summary judgment, we conduct an independent review to determine whether there are triable issues of material fact, and whether the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)
It is undisputed that the respondent Alameda County Medical Center is a public entity under section 811.2. Appellant admits in his briefing that he did not file an administrative claim before filing suit, as mandated by section 945.4. "`The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year. [Citations.]" (Spencer v. Merced County Office of Education (1997) 59 Cal.App.4th 1429, 1434-1435.)
Section 945.4 provides, in pertinent part: "Except as provided in Section[] . . . 946.6, no suit for money or damages may be brought against a public entity . . . until a written claim therefor has been presented to the public entity . . . ."
There is no evidence that appellant has at any time sought or obtained permission to file a late claim, as provided by section 946.6, or that he met any of the criteria for obtaining such relief. A plaintiff must allege, as a necessary element of his cause of action, facts demonstrating or excusing compliance with the claim presentation requirement. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.)
Section 946.6 allows a plaintiff to petition the superior court for relief from the requirements of section 945.4, subject to first showing that a late filed claim has been submitted to the public entity and denied (see sections 911.4, 911.6), and subject to the further requirement that the plaintiff establish grounds for relief, including, inter alia, "excusable neglect."
The cases cited by appellant are not on point. In Savage v. State of California (1970) 4 Cal.App.3d 793, 796, the plaintiffs had actually obtained relief, pursuant to section 946.6, from the requirement of filing a timely administrative claim, based upon their excusable neglect in not filing such a claim while unrepresented by counsel. (See also Bahten v. County of Merced (1976) 59 Cal.App.3d 101, 104 [relief obtained from claim filing requirement].) In Cory v. City of Huntington Beach (1974) 43 Cal.App.3d 131, 133, the plaintiff, unlike appellant here, filed an administrative claim prior to filing suit. In Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, the court held that there was "excusable neglect" sufficient to justify a request for relief from the claims filing requirement, where the plaintiff did not at first know that she had a potential claim against a public entity. There is nothing in the record that indicates that appellant was unaware of his potential claim within the statutory period. (See ibid.; cf. County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1314.)
The essence of appellants position appears to be that his inability to find counsel willing to take his case, by itself, constitutes an adequate excuse or justification for his admitted failure to comply with the government claims statutes. Appellant presents no authority for this argument, and "The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief." (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)
Appellant attached to his opening brief a copy of an administrative claim against respondent, dated May 13, 2005. Appellant filed his lawsuit, however, on June 1, 2004. His administrative claim was therefore untimely. (He also claimed in the trial court and at oral argument, without evidentiary support, that he submitted an administrative claim to the hospital on June 2, 2004.) As discussed ante, there is no indication in the record that appellant ever sought leave to file a late claim under section 946.6, or that the claim was submitted to the respondent in compliance with section 911.4.
Under these circumstances, appellant fails to demonstrate any error in the trial courts grant of summary judgment.
III. DISPOSITION
The judgment is affirmed.
We concur.
SIMONS, Acting P. J.
GEMELLO, J.