Filed 12/30/19 Currie v. Palmer CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

PAUL CURRIE,

Plaintiff and Appellant,

v.

LOLITA V. PALMER,

Defendant and Respondent.

C087173

(Super. Ct. No. 34-2016-00204210-CU-MM-GDS)

Plaintiff Paul Currie appeals the trial court’s grant of summary judgment against him in his medical malpractice suit against defendant Lolita V. Palmer, M.D. On appeal, plaintiff argues (1) he was entitled to a court-appointed expert witness to establish his claims; (2) the trial court erroneously failed to consider the evidence he presented in support of his opposition to summary judgment; and (3) the clerk of the superior court erroneously failed to provide all the necessary documents on appeal. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our recitation of the facts is based on the minimal appeal record, which consists of a June 2017 minute order regarding the trial setting process, a March 2018 written ruling on defendant’s summary judgment motion, two notices of returned documents from April 2018, and the April 2018 judgment of dismissal.

In December 2016, plaintiff sued defendant, alleging medical malpractice and a cause of action pursuant to Elam v. College Park Hospital (1982) 132 Cal.App.3d 332 (Elam). On March 27, 2018, the trial court granted defendant’s motion for summary judgment.

According to the trial court’s tentative ruling, defendant filed an expert declaration in support of her motion opining that the care provided by defendant was “appropriate and within the standard of care.” The trial court found this sufficient to shift the burden to plaintiff to demonstrate a triable issue of material fact. In response, plaintiff failed to file a separate statement, as required by California Rules of Court, rule 3.1350(e) and (f). Plaintiff also failed to file an opposing expert declaration to raise a triable issue as to the defendant’s breach of the standard of care. Instead, plaintiff “attempt[ed] to act as his own expert,” and provided supporting medical articles that he had located on the Internet. The trial court found that plaintiff had failed to lay a foundation showing that he could proffer an expert medical opinion. The court also agreed with defendant that the Elam cause of action was inapplicable to defendant because defendant is an individual, not a hospital.

Neither party requested oral argument, so the trial court affirmed its tentative ruling in a March 8, 2018 minute order. Plaintiff attempted to file a motion requesting the court to appoint an expert witness, but the superior court rejected the document due to procedural defects on April 10, 2018. On April 16, 2018, the court entered a judgment of dismissal on behalf of defendant based on the summary judgment order. Plaintiff again tried to file a motion for appointment of an expert witness, but the court rejected the document on April 25, 2018, based on the judgment of dismissal.

DISCUSSION

Plaintiff argues the burden shifting aspect of Code of Civil Procedure section 437c, subdivision (p)(2) does not apply to indigent parties. Plaintiff also argues the trial court should have provided an appointed expert witness for him, or waive expert witness fees. In essence, plaintiff is arguing that, because California requires expert witness testimony in civil cases, due process requires the government to provide expert witnesses for indigent litigants.

Plaintiff fails to point to anything in the record establishing that he demonstrated his indigence to the trial court, or that he even raised these arguments in the trial court.

We acknowledge that plaintiff is a pro per litigant, but that does not excuse his failure to provide an adequate record on appeal. It is well established that pro per litigants are held to the same standards and must follow the same rules of procedure as litigants who are represented by counsel. “[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. [Citation] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [propria persona litigants must follow the rules of procedure].) In the absence of an adequate record, the judgment is presumed correct. (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1507 (Roberson).) For similar reasons, we reject plaintiff’s claim that the trial court erred in excluding his Internet research and medical articles.

Regardless, plaintiff’s argument that he is entitled to a court-appointed expert witness in this civil medical malpractice case is without merit. Courts have recognized the right of an indigent criminal defendant to the appointment of experts at public expense when necessary to prepare a defense to criminal charges based on the belief that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” (Ake v. Oklahoma (1985) 470 U.S. 68, 76 [84 L.Ed.2d 53, 61], italics added); see also People v. Stuckey (2009) 175 Cal.App.4th 898, 915-916.) Although plaintiff’s medical malpractice claim is understandably important to him, it does not implicate liberty interests like the criminal defendant in Ake. As such, we must reject plaintiff’s contentions.

Finally, we reject plaintiff’s contention that the trial court clerk violated his due process rights by failing to provide all the documents on appeal. The deputy clerk submitted a declaration to this court stating that nothing was omitted. Moreover, as noted above, it is plaintiff’s duty to provide an adequate record to support his claims of error on appeal. (Roberson, supra, 226 Cal.App.4th at p. 1507.)

DISPOSITION

The order granting summary judgment is affirmed. Defendant is awarded her costs on appeal. (Cal. Rules of Court, rule, 8.278(a)(1) & (2).)

KRAUSE , J.

We concur:

MURRAY , Acting P. J.

HOCH , J.