Filed 9/30/19 Jackson v. Griffith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

FRED JACKSON,

Plaintiff and Appellant,

v.

LYLE D. GRIFFITH,

Defendant and Respondent.

F075670

(Super. Ct. No. 16C0052)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

Fred Jackson, in pro. per., for Plaintiff and Appellant.

Weiss-Salinas Law Group, Salinas Law Group, Lisa M. Martin and Stacy R. Lucas for Defendant and Respondent.

-ooOoo-

Plaintiff appeals from a judgment entered against him after defendant’s motion for summary judgment was granted in this medical malpractice action. He contends the trial court abused its discretion by failing to appoint an expert at public expense to assist him in preparing opposition to the motion, failed to consider the evidence he filed in opposition to the motion, and erroneously granted the motion even though plaintiff raised triable issues of material fact in his opposition. We conclude the trial court properly granted summary judgment and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is an inmate in state prison, appearing in this case in propria persona. In December 2014, plaintiff consulted with defendant, a urologist, due to an elevated level of prostate-specific antigen (PSA). An elevated PSA level can indicate prostate cancer. Defendant recommended scheduling plaintiff for a transrectal ultrasound-guided needle biopsy of the prostate gland, to check for cancer. On January 16, 2015, plaintiff signed a patient consent form and defendant performed the procedure; defendant instructed plaintiff to return in two weeks for the results. When plaintiff returned on February 2, 2015, the biopsy results indicated no malignancy.

Plaintiff sued defendant, alleging that shortly after the biopsy was done, he began to experience uncontrolled urine leakage, which he attributed to negligence in the performance of the biopsy. He alleged one cause of action for professional negligence.

Defendant moved for summary judgment, contending his care and treatment of plaintiff met the applicable standard of care and did not cause or contribute to plaintiff’s alleged harm. Defendant submitted supporting evidence, including the expert declaration of a urologist who opined that defendant properly obtained informed consent from plaintiff in writing, and that defendant’s diagnosis, care, and treatment of plaintiff met the applicable standard of care. Defendant’s expert also declared that urine leakage is not a known complication of a transrectal ultrasound-guided needle biopsy, and such a biopsy does not cause urine leakage; further, the leakage was a by-product of plaintiff’s disease process.

Plaintiff submitted opposition to defendant’s motion, but his supporting evidence—his declaration with accompanying exhibits—was rejected by the court clerk because the document included tabs. Plaintiff corrected the declaration and exhibits and sent them back to the trial court, but they were returned to him again, without explanation. He resubmitted them once again, but they were not filed by the trial court until two days after the hearing of the motion. Defendant timely received all of plaintiff’s opposition papers and responded to them, including raising evidentiary objections to his supporting evidence. Plaintiff did not appear at the February 21, 2017 hearing, although he had obtained a court order to appear by telephone.

The trial court granted the motion for summary judgment and entered judgment in favor of defendant. Plaintiff filed a motion for reconsideration, asking the trial court to consider the evidence he had submitted, which was received by the court after the hearing, and to deny the motion for summary judgment. At the hearing of the motion for reconsideration, the trial court assured plaintiff multiple times that it did consider his evidence prior to issuing its order granting summary judgment; it pointed out that plaintiff’s evidence did not include an expert declaration and did not raise a triable issue of material fact disputing the evidence provided by defendant’s expert. The trial court denied the motion for reconsideration. Plaintiff appeals from the adverse judgment.

DISCUSSION

I. Failure to Consider Declaration and Exhibits

Plaintiff contends it was a violation of his right to due process and his right to be heard for the court to fail to file and consider his declaration and attached exhibits in opposition to defendant’s motion for summary judgment. Plaintiff attempted to file the declaration and exhibits twice before the hearing of the motion. They were not actually filed by the trial court until two days after the hearing.

At the February 21, 2017 hearing, after summarizing defendant’s showing and plaintiff’s arguments in opposition, the trial court indicated it would grant the motion for summary judgment. It instructed counsel for defendant to prepare the order. Plaintiff’s opposition was filed on February 23, 2017. The trial court’s combined order denying the summary judgment motion and judgment in favor of defendant was filed March 6, 2017.

“A trial court’s oral ruling on a motion does not become effective until it is filed in writing with the clerk or entered in the minutes. [Citations.] Accordingly, the trial court may properly file a written order differing from its oral rulings when the rulings have not been entered in the minutes of the court. [Citation.] Furthermore, when the trial court’s minute order expressly indicates that a written order will be filed, only the written order is the effective order.” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) The trial court expressly directed defense counsel to prepare a formal order. The trial court’s final order on defendant’s motion for summary judgment was not entered and effective until March 6, 2017. Thus, the trial court had from February 23, 2017, when plaintiff filed his declaration and exhibits with the court, until March 6, 2017, when it signed and filed the formal order granting the motion for summary judgment, to review and consider those documents. The trial court stated multiple times that it did consider plaintiff’s declaration and exhibits prior to entering the order granting the motion for summary judgment. Plaintiff has not established that the trial court failed to consider his declaration and exhibits in granting the motion for summary judgment. Therefore, he has not established that the trial court committed error by failing to review and consider evidence he submitted.

II. Denial of Appointment of Expert

Plaintiff contends the trial court abused its discretion when it denied his motions for appointment of an expert witness to render opinions on his behalf. Plaintiff filed at least two motions for appointment of an expert witness; he asserted appointment of an expert was necessary in order to controvert the opinions of defendant’s expert and present evidence supporting his claims. The motions were denied. He now asserts he was an indigent prison inmate, with a waiver of trial court fees and costs, and his motions should have been granted because an expert was necessary in order to oppose defendant’s motion for summary judgment.

Plaintiff based his requests for appointment of an expert on Evidence Code section 730, which provides in part:

“When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.”

Thus, the trial court has discretion to appoint an expert on a party’s motion, and its decision is reviewed for abuse of discretion. (In re Marriage of E.U. & J.E. (2012) 212 Cal.App.4th 1377, 1389.)

The payment of court-appointed experts is addressed in Evidence Code section 731. Regarding experts appointed in civil actions, it states:

“(b) In any county in which the superior court so provides, the compensation fixed under Section 730 for medical experts appointed for the court’s needs in civil actions shall be a charge against the court. In any county in which the board of supervisors so provides, the compensation fixed under Section 730 for medical experts appointed in civil actions, for purposes other than the court’s needs, shall be a charge against and paid out of the treasury of that county on order of the court.

“(c) Except as otherwise provided in this section, in all civil actions, the compensation fixed under Section 730 shall, in the first instance, be apportioned and charged to the several parties in a proportion as the court may determine and may thereafter be taxed and allowed in like manner as other costs.” (Evid. Code, § 731, subds. (b), (c).)

Plaintiff did not seek appointment of an expert for the trial court’s needs. Rather, he sought an expert to provide an opinion supportive of his claims against defendant, to refute the opinions stated in the expert declaration filed by defendant. Accordingly, under Evidence Code section 731, subdivision (b), the compensation of the expert could be charged to the county only if the board of supervisors of the county provided for such compensation and if the trial court ordered it. Here, the trial court repeatedly informed plaintiff that it was unaware of any provision for payment of expert fees by the county in a civil medical malpractice action, and invited plaintiff to inform it if he was aware of any such provision. The trial court also noted that it would be inappropriate for it to choose an expert to appoint on plaintiff’s behalf, because it could not know which expert would render an opinion favorable to him. Plaintiff did not cite the trial court to any provision providing for payment of experts by the county, and he has not cited any such provision in this appeal.

Under Evidence Code section 731, subdivision (c), the compensation of an appointed expert initially would be charged to one or more parties as determined by the court, subject to subsequent recovery as a cost by the prevailing party. Evidence Code section 731, subdivision (c), does not authorize the court to appoint an expert for a party at public expense.

Plaintiff also cited Evidence Code section 460 in support of his requests for appointment of an expert. That section provides:

“Where the advice of persons learned in the subject matter is required in order to enable the court to take judicial notice of a matter, the court on its own motion or on motion of any party may appoint one or more such persons to provide such advice. If the court determines to appoint such a person, he shall be appointed and compensated in the manner provided in Article 2 (commencing with Section 730) of Chapter 3 of Division 6.” (Evid. Code, § 460.)

This section applies specifically to expert advice or opinion necessary to enable the trial court to take judicial notice of a matter. Here, plaintiff did not seek an expert opinion on a matter of which the trial court was to take judicial notice. Rather he sought an expert’s opinion as evidence supporting his claim of medical malpractice, to contradict any expert opinion proffered by defendant. Additionally, compensation of an expert under Evidence Code section 460 is the same as under Evidence Code sections 730 and 731. As previously discussed, plaintiff has not demonstrated the trial court erred in concluding no public funds were available for appointment of an expert for plaintiff under those sections.

We also note the Law Revision Commission comments to Evidence Code section 460: “In the normal case, the parties may be expected to produce the advice of experts if it is needed. Section 460, however, enables the court to appoint experts in those cases where the advice of an expert not identified with a party seems desirable.” (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code, (2004 ed.) foll. § 460, p. 248, italics added.) Thus, the section appears to contemplate appointment of an impartial expert, rather than one aligned with a party.

We conclude the trial court did not abuse its discretion in denying plaintiff’s motions for appointment of an expert witness at public expense.

III. Denial of Physical Examination

Plaintiff contends the trial court abused its discretion when it denied his motions for a physical examination. The motions essentially duplicated his motions for appointment of an expert witness. The first motion asked for appointment of a doctor to physically examine plaintiff to support plaintiff’s claim of medical malpractice, and to dispute the anticipated findings of defendant’s expert. The second motion cited Code of Civil Procedure sections 2032.210 and 2032.020, asserted defendant’s expert lacked personal knowledge of plaintiff’s condition because he had not examined plaintiff, and sought appointment of an expert to conduct a physical examination of plaintiff to address the issue of causation. The trial court denied both motions.

Section 2032.020 provides that a party may obtain discovery by means of a physical examination of a party to the action. Section 2032.220 provides that, “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff” by a physician, provided certain conditions are met. (§ 2032.220, subd. (a).) If the plaintiff refuses to comply with the demand, the defendant may move for an order compelling compliance. (§ 2032.250.) This procedure allows the defendant in a personal injury action to compel the plaintiff to submit to a physical examination by the defendant’s medical expert, if the defendant wishes to obtain evidence concerning whether and to what extent the plaintiff has been injured. It is not designed to compel a physical examination of the plaintiff by the plaintiff’s expert.

We conclude the trial court did not abuse its discretion by denying plaintiff’s motions for a physical examination, both because the cited statutes do not apply to the physical examination plaintiff sought and for the same reasons that it did not abuse its discretion by denying his motions for appointment of an expert.

IV. Grant of Motion for Summary Judgment

A. Standards applicable to summary judgment motions

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown 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.” (§ 437c, subd. (p)(2).) Once the moving defendant has met his initial burden, “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.” (Ibid.)

On appeal, “we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

“The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

B. Medical malpractice standards

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “ ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” ’ ” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) In a medical malpractice action, when “the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. [Citations.] Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.)

“ ‘ “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases.” ’ ” (Hanson v. Grode, supra, 76 Cal.App.4th at p. 607.) “When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

Defendant moved for summary judgment and supported the motion with an expert’s declaration showing defendant’s conduct met the applicable standard of care. Defendant’s expert opined that defendant’s diagnosis, care, and treatment of plaintiff met the applicable standard of care, and nothing defendant did or failed to do caused or was a substantial factor in causing plaintiff’s alleged urine leakage. The expert also stated the urine leakage was a by-product of plaintiff’s disease process. Plaintiff has not challenged the sufficiency of defendant’s showing.

Questions regarding whether a transrectal ultrasound-guided needle biopsy was an appropriate response to plaintiff’s symptoms and medical history, and whether it was properly performed, are not matters within the knowledge of laypersons. Consequently, in order to avoid summary judgment, plaintiff was required to present contrary expert evidence, raising a triable issue of material fact regarding whether defendant met the applicable standard of care. Plaintiff failed to present any expert evidence in opposition to the motion. Defendant’s showing was uncontradicted and the trial court properly granted summary judgment in his favor.

C. Common knowledge exception

Plaintiff seems to argue that at least some of his claims could be established without expert testimony, so they were not defeated by his lack of an expert declaration. His argument invokes the “common knowledge” exception to the general rule that breach of the standard of care in a medical malpractice action can only be established by expert testimony. “The ‘common knowledge’ exception is typically employed in medical malpractice cases in which the misfeasance is sufficiently obvious as to fall within the common knowledge of laypersons.” (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1302.) “The ‘common knowledge’ exception is principally limited 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.’ [Citation.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.] Otherwise, ‘ “expert evidence is conclusive and cannot be disregarded.” ’ ” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001, fn. omitted.)

1. Lack of informed consent

Plaintiff contends defendant failed to obtain informed consent from him prior to performing the biopsy, and this can be shown without expert testimony. A patient has a right to disclosure by the physician of information essential to enable the patient to give knowledgeable consent to medical treatment. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 634.) “[A]s an integral part of the physician’s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 243.) “The disclosure must include the risk of bodily harm, problems of recuperation, an explanation of complications which might possibly occur in complex surgery, and beyond that minimal disclosure, such additional information as a skilled practitioner of good standing would provide under similar circumstances.” (Nelson, at p. 634.) The duty of disclosure applies whether the procedure involves treatment or a diagnostic test. (Truman v. Thomas (1980) 27 Cal.3d 285, 292.)

The extent of the disclosure a physician must make is a question of fact that depends on what information would be significant to a reasonable person in the patient’s position when deciding whether to accept or reject a recommended medical procedure. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1186.) In cases alleging failure to obtain informed consent, the common knowledge exception may apply, and expert testimony may be unnecessary, when no scientific enlightenment is necessary because the topic is familiar to laypersons. (Ewing v. Northridge Hospital Medical Center, supra, 120 Cal.App.4th at p. 1303.) In contrast, when the dangers or risks inherently or potentially involved in a proposed treatment or diagnostic test are not commonly known to laypersons, expert testimony is required in order for the trier of fact to determine what risks or potential complications should have been included in the physician’s disclosure.

Plaintiff’s first amended complaint alleged, among other things, that defendant failed to obtain his informed consent before performing the biopsy procedure. Defendant’s motion for summary judgment asserted defendant “provided [plaintiff] with patient education in regard to diagnosis, possible diagnostics, medications if needed, side-effects, and treatment options.” It cited in support a record of defendant’s December 17, 2014 consultation with plaintiff. The motion also asserted plaintiff signed a patient consent form indicating that the risks of the biopsy procedure had been explained to him and that he gave consent to the procedure. Defendant’s expert opined that defendant met the standard of care in obtaining plaintiff’s informed consent by orally informing him of the risks associated with the procedure and obtaining plaintiff’s written consent.

Plaintiff seems to assert his opposition to defendant’s motion raised a triable issue of material fact regarding whether he gave informed consent to the biopsy procedure because he presented evidence that (1) the medical assistant who had him sign a written consent form did not read the form to him before he signed it, even though he indicated he could not read it because he was vision impaired and he did not have his contact lenses with him, (2) defendant failed to inform him that uncontrolled urine leakage was a potential risk of the procedure, and (3) defendant failed to inform him that an MRI was an alternative, less invasive option.

Regarding the alleged failure to inform plaintiff that uncontrolled urine leakage was a potential risk of the procedure, defendant’s expert declaration stated: “Based upon my medical education, training, and professional experience I know that urine leakage is not a known complication of the Transrectal Ultrasound Guided Needle biopsy.” Further, “[a] Transrectal Ultrasound Guided Biopsy does not cause urine leakage.” This is not a matter within the common knowledge of laypersons. The uncontradicted expert evidence was that plaintiff’s alleged urine leakage was not a potential complication or result of the procedure performed by defendant. Consequently, it was not a matter requiring disclosure in order to obtain the patient’s informed consent and plaintiff provided no contrary expert evidence to raise a triable issue of material fact on that point.

Plaintiff also contends he was unable to read the written consent form without his contact lenses and he signed it without having the medical assistant read it to him. The consent form did not identify urine leakage as a potential complication of the procedure; defendant’s uncontradicted expert declaration, however, established that it was not a potential complication of the procedure, so it was not required to be disclosed. Consequently, the failure to have someone read the consent form to plaintiff did not raise a triable issue of material fact regarding whether defendant breached his duty of disclosure to plaintiff by failing to disclose urine leakage as a potential result or complication of the procedure, or whether the alleged lack of disclosure was a cause of the alleged harm to plaintiff.

Finally, plaintiff contends defendant breached his duty of disclosure by failing to inform plaintiff that an MRI was an alternative, less invasive option to the biopsy defendant performed. Plaintiff did not raise this issue in his opening brief, but addressed it only in his reply brief. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) This is a matter of fairness because the opposing party has not been given the opportunity to address those points. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Plaintiff offered no reason for the delay in presenting the issue, and his argument may be disregarded.

In any event, whether an MRI is an appropriate and less invasive option for diagnosing prostate cancer than the biopsy defendant performed is not a matter of common knowledge that can be addressed without expert testimony. Plaintiff presented no expert evidence supporting his contention that an MRI is an alternative, less invasive procedure serving the same purpose, of which plaintiff should have been informed. He also presented no expert opinion that an MRI was a viable, appropriate option in plaintiff’s particular case.

We conclude plaintiff has not shown that he raised a triable issue of material fact supporting his claim of lack of informed consent.

2. Plaintiff’s racial heritage

Plaintiff contends he raised a triable issue of material fact regarding whether defendant breached his duty of care to plaintiff by recommending performance of the transrectal ultrasound-guided needle biopsy. Plaintiff asserts defendant’s decision to perform that procedure was the result of his erroneous understanding that plaintiff was a “black male at high risk for prostate cancer.” The record of defendant’s December 17, 2014 consultation with plaintiff identified plaintiff’s chief complaint as “elevated PSA.” Defendant’s assessment of plaintiff’s condition at that time stated: “1. Elevated PSA in a black male. [¶] 2. Some symptomatic BPH. [¶] He is at high risk for prostate cancer.” On January 16, 2015, the date of the biopsy, defendant recorded: “The patient comes with elevated PSA of 5.1, a black male with no family history of prostate cancer.” Plaintiff asserts he informed defendant of his racial heritage prior to the biopsy, and he is not a high-risk black male; rather he is of mixed racial descent, including French, German, African-American, and Indian heritage.

Defendant’s expert declared, based on plaintiff’s medical records, that in December 2014, defendant noted plaintiff had an elevated PSA; a PSA test measures the level of PSA in a man’s blood. Plaintiff’s lab test results reflected a PSA level of 5.1; the level was greater than 4.0 nanograms per milliliter, which was out of range and elevated. An elevated PSA level can indicate prostate cancer. Defendant’s expert concluded: “Based on my medical education, training, and professional experience, as well as my review of [plaintiff’s] medical records, it is my professional opinion that [defendant] at all times, and in all respects, met the applicable standard of care in the diagnosis, care and treatment of [plaintiff]. [¶] … Specifically, the Transrectal Ultrasound Guided Biopsy performed by [defendant] on [plaintiff] was indicated by [plaintiff’s] medical history and lab results. The Transrectal Ultrasound Guided Biopsy performed by [defendant] was reasonable and well within the standard of care.”

Plaintiff did not dispute that he had an elevated PSA or that an elevated PSA can indicate prostate cancer. He submitted no expert evidence that performance of the transrectal ultrasound-guided needle biopsy was inappropriate for a man with a similarly elevated PSA, who was not African-American, but was of mixed race. He did not present expert evidence showing that a reasonable physician in defendant’s position would not have recommended the procedure for a man of plaintiff’s actual racial heritage with a similar medical history.

Plaintiff failed to present evidence controverting the declaration of defendant’s expert that defendant’s diagnosis, care, and treatment of plaintiff, including his choice to perform the biopsy and his performance of the biopsy, were within the applicable standard of care and did not cause plaintiff harm as alleged.

Plaintiff failed to raise a triable issue of material fact regarding the elements of negligence and causation. Consequently, the trial court properly granted summary judgment in defendant’s favor.

V. Telephonic Appearance

On appeal, the trial court’s judgment is presumed correct, and the appellant must affirmatively demonstrate error. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.) Even if error is demonstrated, it generally will not warrant reversal of the judgment unless the error was prejudicial; an error is prejudicial if it appears reasonably probable that a result more favorable to the appellant would have been reached in the absence of the error. (Id. at p. 557.)

Plaintiff contends he was denied his right to appear telephonically and argue against the motion for summary judgment. The trial court, however, did not deny him an opportunity to appear telephonically at the hearing. It issued an order to the prison to grant plaintiff access to a telephone in order to make a telephonic appearance at the February 21, 2017 hearing. Plaintiff did not appear telephonically at the hearing. Subsequently, plaintiff did not file papers with the court to explain his absence from the hearing or request that oral argument be reset so that he could attend.

Plaintiff did file a motion for reconsideration, in which he stated he was “never called for his telephone court call appearance.” Plaintiff attached a verification to his motion for reconsideration. No further explanation has been offered for plaintiff’s failure to appear at the hearing of the motion for summary judgment.

At the April 19, 2017 hearing of plaintiff’s motion for reconsideration, plaintiff argued that defendant’s showing in support of the motion for summary judgment was insufficient. He complained of his inability to present an opposing expert opinion because the trial court repeatedly denied his motions for appointment of an expert. Plaintiff also asserted his opposing declaration and the evidence accompanying it raised a triable issue of material fact, despite the absence of an expert declaration.

Plaintiff has not demonstrated error by the trial court. The trial court issued an order for plaintiff’s telephonic appearance at the summary judgment hearing. If plaintiff was prevented from appearing, it was not conduct of the trial court that prevented his appearance. Plaintiff did not timely notify the court of any reason for his nonappearance, or, if it was due to causes beyond his control, request relief in the form of an additional opportunity for oral argument.

Moreover, plaintiff has not established his absence from the summary judgment hearing was prejudicial. He has not identified any argument he would have made at the summary judgment hearing that was not already made in his papers; he has not identified any argument he would have made that would have overcome defendant’s showing in support of the summary judgment motion. Further, plaintiff orally argued the merits of his opposition to the motion for summary judgment at the hearing of his motion for reconsideration. As the trial court pointed out at the hearing of plaintiff’s motion for reconsideration, the obstacle plaintiff needed to overcome was the absence of any expert opinion supporting plaintiff’s position that defendant’s conduct breached the applicable standard of care and caused or contributed to harm to plaintiff. Plaintiff’s appearance at the hearing of the motion for summary judgment would not have cured that deficiency in his opposition. Consequently, he has not shown it was reasonably probable that a result more favorable to him would have been reached if he had appeared at the hearing.

VI. Request for Judicial Notice

On June 25, 2018, plaintiff filed a request for judicial notice with this court, in support of his arguments regarding appointment and compensation of an expert for an indigent litigant in civil litigation. He asked that we take judicial notice of Government Code sections 68630 through 68641, and specifically sections 68630, 68632, and 68633. He also sought judicial notice of Government Code sections 68651 through 68662.

Evidence Code section 451 provides that judicial notice shall be taken of the “public statutory law of this state.” (Evid. Code, § 451, subd. (a).) However, because judicial notice is a substitute for proof, only relevant matter may be judicially noticed. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301.)

Government Code section 68651 creates a pilot project in selected courts to provide legal counsel “for low-income persons who require legal services in civil matters involving housing-related matters, domestic violence and civil harassment restraining orders, probate conservatorships, guardianships of the person, elder abuse, or actions by a parent to obtain sole legal or physical custody of a child.” (Gov. Code, § 68651, subd. (b)(1).) Plaintiff’s case does not fall within any of the listed categories of cases. Government Code sections 68660 through 68662 deal with appointment of attorneys to represent indigent persons who have been sentenced to death in habeas corpus proceedings. Government Code sections 68652 through 68659 have been repealed or do not exist.

Government Code sections 68630 through 68641 provide for a waiver of court fees and costs for litigants with insufficient economic means to pay them. Plaintiff has not identified anything in these sections that authorizes the trial court to appoint an expert to testify for a party in a civil medical malpractice action, or to have that expert compensated at public expense.

We decline to take judicial notice of any of these code sections, which are either irrelevant to the issues raised in this appeal or nonexistent.

On September 9, 2019, plaintiff filed a second request for judicial notice, seeking judicial notice of the trial court’s March 1, 2016, and June 23, 2017 orders on plaintiff’s applications for waiver of court fees and costs. Neither order granted plaintiff a waiver of the cost of an expert witness. Plaintiff has not demonstrated that these documents are relevant to the issues raised and arguments made in his briefs.

To the extent plaintiff offered the documents in support of new arguments raised for the first time at oral argument, both the request for judicial notice and the arguments are untimely. Arguments made for the first time in an appellant’s reply brief or at oral argument, unaccompanied by any reason for failing to raise them in the opening brief, come too late and may be disregarded. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830.) The appellate rules provide orderly procedures for designation and preparation of the record on appeal. (Cal. Rules of Court, rules 8.120–8.163.) These procedures are designed to establish the record on appeal before the briefing process, so all parties can base their briefing on the content of the record. Late requests to take judicial notice of additional documents from the trial court’s files cause hardship to a respondent who has already completed and filed its brief. Because plaintiff has not explained the delay in seeking to make these documents part of the record on appeal, and because he has not shown that they are relevant to the arguments presented in his opening brief, we deny this request for judicial notice.

DISPOSITION

The judgment is affirmed. Defendant is entitled to his costs on appeal.

HILL, P.J.

WE CONCUR:

DETJEN, J.

PEÑA, J.