Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M88017
ELIA, J.Ahmed Amarir, an inmate at the Correctional Training Facility (CTF) at Soledad, brought a personal injury action against dentist James C. Hill and physician Michael L. Friedman, CTF's Chief Medical Officer and Medical Care Manager. Drs. Hill and Friedman moved for summary judgment and their supporting papers included the declaration of an expert, who stated that neither had acted negligently. The court granted their summary judgment motion and entered a judgment of dismissal against Amarir. (See Code Civ. Proc, § 437c.)
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
We have reviewed Amarir's appellate contentions and conclude that the judgment must be affirmed.
A. Procedural History
The complaint's first cause of action alleged that respondent Hill had negligently performed dental procedures resulting in "excessive grinding of teeth (No. 19 and 20)" and consequential "irreparable damage." A second cause of action alleged that respondents Hill and Friedman had negligently failed to timely inform him about and approve "several dental/surgical procedures that would accomplish a complete restoration of his normal bit[e]." A third cause of action alleged that they negligently failed to "address or remedy plaintiff's other problems-in particular, periodontal disease, gingivitis, a gingival abscess, bleeding and swollen gums, dizziness, difficulty eating hard foods and occlusion imbalance." It also averred that they acted negligently in referring him to an off-site specialist whom he could see only if he placed $2000 in his prison trust account even though he had an "obvious need for immediate treatment to alleviate his pain and suffering as a result of his dental condition."
Respondents filed a motion for summary judgment, a separate statement of 57 undisputed material facts, and supporting declarations. Respondents also requested that the court take judicial notice of the declarations of Dr. Hill, John R. O'Neal, D.D.S., another CTF dentist, and Dr. Friedman previously filed in a federal action brought by Amarir against Drs. Hill and Friedman.
The complaint specified that the malpractice action had been "originally filed in Federal Court on December 14, 2004, under 42 U.S.C. 1983" and was "pending in the Ninth Circuit...." It alleged that California's statute of limitations had been tolled by Title 28 United States Code section 1367, subdivision (d). In opposition to the summary judgment motion now under review, appellant asked the court to take judicial notice of a number of documents, including the federal order granting Dr. Hill's and Dr. Friedman's motion for summary judgment as to appellant's Title 42 United States Code section 1983 claim of deliberate indifference to serious medical needs and dismissing the medical malpractice claim under California law without prejudice.
Respondents' separate statement of undisputed facts sets forth appellant's history of dental treatment by Dr. Hill, including the treatment on October 17, 2002, which included "occlusal adjustments." Dr. Hill treated appellant numerous times; he saw appellant for the last time on August 15, 2003. Respondent's separate statement also sets forth the history of appellant's administrative grievance, filed on August 27, 2003, in which appellant "[c]omplained about the dental care provided by Dr. Hill" and "requested 'to be seen by an outside specialist (Dental Surgeon) to treat [his] dental problem.' "
The statement and supporting evidence establish that appellant's request to see an outside specialist was approved by Dr. Hill but appellant was told that such treatment would be at his expense because it was not medically necessary and he was required to have $2000 in his trust account to cover the cost of transportation and treatment. Dr. Hill's determination was reviewed and approved by the Chief Dental Officer. At the Second Appeal Response Level, Dr. Hill's decision was reviewed by a designee of CTF Chief Medical Officer Friedman and denied. This decision was appealed to the Director's Level and, on June 9, 2004, the appeal was denied, which exhausted appellant's administrative remedies.
The declaration of Frank Grimaldi, D.D.S. filed in support of respondents' motion indicated that he was a medical staff member at UCSF Medical Center and San Francisco General Hospital Medical Center and he also maintained a private dental practice. In addition, Dr. Grimaldi was a clinical professor at UCSF and Director of both the "General Practice Residency Program School" and the "Hospital Dentistry Program" at UCSF. He stated: "From my experience as a clinical professor in dentistry at UCSF and as a practicing dentist for 23 years, I am familiar with the professional standard of care for dentists in Northern and Central California. I am also familiar with 15 C.C.R. § 3350.1, which describes the medical and dental services available to inmates in the facilities of the California Department of Corrections and Rehabilitation (CDCR). I am also familiar with the standard of care for dentists providing care to CDCR inmates, as well as the provisions of 15 C.C.R. § 3350.2 regarding the availability to inmates of off-site referrals for health care." The declaration specified the dental records that he had reviewed and included a clinical summary.
California Code of Regulations, title 15, section 3350, subdivision (a), provides in pertinent part: "The department shall only provide medical services for inmates which are based on medical necessity and supported by outcome data as effective medical care." (See Cal. Code Regs., tit. 15, § 3350, subd. (b)(1) [defining "Medically Necessary"].) Each CDCR facility is required to "maintain contractual arrangements with local off-site agencies for those health services deemed to be medically necessary as defined in section 3350(b)(1), and that are not provided within the facility." (Cal. Code Regs., tit. 15, § 3350.2, subd. (a); see Cal. Code Regs., tit. 15, § 3000 [defining "facility"].) The regulations preclude treatment for "[c]onditions that are not readily amenable to treatment, " and "[t]emporomandibular joint dysfunction" (TMJ) is named as a specific example. (Cal. Code Regs., tit. 15, § 3350.1, subd. (a)(2)(B).)
Based upon his review of appellant's dental records, Dr. Grimaldi stated that appellant had "missing teeth, generalized periodontal disease, occlusional imbalance and grinding problems prior to his arrival at CTF." In his opinion, "[t]he dental care and treatment Mr. Amarir received at CTF, including the care and treatment provided by Dr. James Hill, was appropriate and met the standard of care for dental professionals practicing in Northern California." According to Dr. Grimaldi, appellant has TMJ, which "is not readily amendable to treatment, " and his TMJ symptoms were "unreleated to his dental care and treatment" and resulted from other factors such as "his grinding and clenching, missing teeth, stress and poor oral hygiene." Dr. Grimaldi concurred with the CDRC Director's Level Appeal Decision, dated June 9, 2004. It was his opinion that appellant "received appropriate dental care and treatment at CTF, and it was not below the standard of care to not provide Mr. Amarir with an additional dental consultation through an off-site referral." In addition, "the dental care Mr. Amarir received at CTF did not cause any of his dental problems relating to his poor oral hygiene, clenching, grinding or TMJ symptoms."
Appellant's written opposition to the summary judgment motion generally described five "triable issues of material fact" that he contended existed "as to Dr. Hill and Dr. Friedman's negligent dental care and treatment while he was housed at CTF." In his memorandum of points and authorities, appellant stated that "[t]here is a proximate casual [sic] connection between Dr. Hill's occlusal adjustment and grinding of [his] teeth on October 17, 2002, and [his] abnormal bite, clenching and grinding of teeth." He declared that he was "a prisoner without the means to obtain an expert on this issue of causation" and cited to a description of TMJ contained in a nursing textbook and separately requested the court to take judicial notice of excerpts from that textbook. Appellant also argued that Drs. Hill and Friedman were "negligent for not allowing [him] to see an orthodontist to correct the TMJ symptoms and to perform periodontal surgery."
The court found that appellant had "not provided any expert opinion that Dr. Hill and/or Dr. Friedman were negligent" and "[t]herefore, he ha[d] failed to meet his burden." It determined that the undisputed material facts established that respondents provided appellant with proper dental care meeting the standard of care for practicing dentists and they did not act negligently toward defendant. The court granted summary judgment.
B. Applicable Law
A motion for summary judgment must be supported by "a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed" and each of those material facts must be "followed by a reference to the supporting evidence." (§ 437c, subd. (b)(1).) The opposition papers must "include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed" and that sets forth "any other material facts that the opposing party contends are disputed." (§ 437c, subd. (b)(3), italics added.) The party opposing a summary judgment motion is required to provide a reference to the supporting evidence for each fact that is disputed. (Ibid.) "Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (Ibid.) The appellate record does not show that appellant filed a proper separate statement in response to respondents' separate statement of undisputed facts.
A defendant meets the burden of showing that a cause of action has no merit if the defendant shows that "one or more elements of the cause of action... cannot be established...." (§ 437c, subd. (p)(2).) The burden then "shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action...." (Ibid.) The plaintiff must "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action...." (Ibid.) The plaintiff "may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists...." (Ibid.)
Statute requires a court to either deny a summary judgment motion or order a continuance if the opposing party establishes by affidavit that "facts essential to justify opposition may exist but cannot, for reasons stated, then be presented." (§ 437c, subd. (h).) It allows the opposing party, "at any time on or before the date the opposition response to the motion is due, " to bring an ex parte motion for a continuance to obtain necessary discovery. (Ibid.) The appellate record does not show that appellant submitted such an affidavit or brought such a motion for a continuance.
"In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court...." (§ 437c, subd. (c), italics added.) A motion for summary judgment must 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." (§ 437c, subd. (c).) "On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612....)" (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)
C. Court had no Duty to Appoint an Expert at Government Expense
On appeal, appellant first contends that the trial court improperly granted summary judgment on the ground that he failed to provide the declaration of an opposing expert establishing a triable issue. He implies that he was not required to do so because he was a pro se prisoner and it was impossible for him to obtain an expert "without the court's assistance (funds) under the authority of Evidence Code § 730...."
Evidence Code section 730 provides: "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." (Italics added.) The statutory authority empowering a court to appoint an expert is completely discretionary. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 ["It is a well-settled principle of statutory construction that the word 'may' is ordinarily construed as permissive"].) Nothing in Evidence Code section 730 compels a court to appoint an expert sua sponte.
The appellate record does not reflect that appellant brought a motion for appointment of an expert under Evidence Code section 730. Consequently, the court's failure to appoint an expert under that section cannot be deemed an abuse of discretion. Appellant has not cited any other California statute or Rule of Court requiring the court to automatically appoint an expert at the government's expense when an indigent prisoner needs an expert's opinion to avoid summary judgment in a civil action that he initiated.
Furthermore, payment of a court-appointed expert is a separate issue. As to criminal actions, Evidence Code section 731, subdivision (a) provides that "the compensation fixed under Section 730 shall be a charge against the county in which such action or proceeding is pending and shall be paid out of the treasury of such county on order of the court." But a different rule may apply in civil actions. "In any county in which the board of supervisors so provides, the compensation fixed under Section 730 for medical experts in civil actions in such county shall be a charge against and paid out of the treasury of such county on order of the court." (Evid. Code, § 731, subd. (b).) In all other civil actions, "the compensation fixed under Section 730 shall, in the first instance, be apportioned and charged to the several parties in such proportion as the court may determine and may thereafter be taxed and allowed in like manner as other costs." (Evid. Code, § 731, subd. (c); see Code Civ. Proc., § 1033.5, subd. (a)(8) [allowable costs include "[f]ees of expert witnesses ordered by the court"].)
The California Rules of Court provide for a waiver of certain court fees and costs based upon an applicant's financial condition. (See Cal. Rules of Court, rule 3.50 et seq.; see also Gov. Code, § 68630 et seq.) The "[n]ecessary court fees and costs" that may be waived upon application include the "[w]itness fees of court-appointed experts." (Cal. Rules of Court, rule 3.56(5); see Cal. Rules of Court, rule 3.51 [method of application].)
Appellant has neither argued nor established that an indigent prisoner who brings a civil action has a constitutional right to the appointment of an expert at government expense. While it is clear that "prisoners have a constitutional right of access to the courts" (Bounds v. Smith (1977) 430 U.S. 817, 821 [97 S.Ct. 1491]), the right of access does not mean that the government must enable the prisoner "to litigate effectively once in court. [Citation.]" (Lewis v. Casey (1996) 518 U.S. 343, 354 [116 S.Ct. 2174].) The constitutional right of access "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." (Id. at p. 355.) An inmate claiming a violation of the constitutional right to access must show actual injury (id. at p. 348) and "the injury requirement is not satisfied by just any type of frustrated legal claim." (Id. at p. 354.) Those legal claims protected by the constitutional right to access are direct appeals from convictions, habeas petitions, and civil rights actions such as actions under United States Code, title 42, section 1983 to vindicate basic constitutional rights. (Id. at p. 355.) "The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." (Ibid.) This action is an ordinary negligence action and is not the type of action protected by prisoners' right of access to the courts.
In addition, appellant has not argued or established that an indigent plaintiff has a constitutional right to litigate an ordinary negligence case with the assistance of a court-appointed expert at no cost to him. (Cf. U.S. v. Kras (1973) 409 U.S. 434, 445-450 [93 S.Ct. 631] [waiver of filing fee in voluntary bankruptcy proceeding not constitutionally compelled since no fundamental interest at stake]; cf. also Boddie v. Connecticut (1971) 401 U.S. 371, 374, 380-381, 383 [91 S.Ct. 780] [waiver of filing fee in divorce proceeding constitutionally compelled because proceeding involved the marriage relationship and courts were the sole means for dissolving that legal relationship].)
D. Declaration of Expert Necessary
Appellant next argues that expert opinion evidence was not required to defeat the motion for summary judgment. He maintains that the court should have denied the summary judgment motion because there is a causal connection between Dr. Hill's occlusal adjustment of his teeth on October 17, 2002 and his "abnormal bite, clenching and grinding teeth." He contends that the "record evidence" presented by Drs. Hill and Friedman "reflects that [he] never complained to any prison dentist that he was experiencing clenching and/or grinding of his teeth and/or TMJ symptoms" before October 17, 2002, when Dr. Hill made occlusal adjustments and ground down his teeth.
Appellant asserts that the "occlusal adjustment of [his] teeth on October 17, 2002, poses a question of common knowledge and observation and does not require expert testimony because the consequences of Dr. Hill's treatment were not such as ordinarily would have followed if due care had been exercised." He claims that "[i]t is common knowledge to a layman that if you perform a[n] occlusal adjustment on a patient's teeth when that patient has never complained about abnormal bite, then the consequences of that procedure is going to make the patients [sic] bite abnormal or cause some sort of structural defect."
Appellant is invoking the "common knowledge exception" to the general rule that "[i]n a case of professional malpractice, the standard of care against which the acts of the professional are to be measured generally requires expert testimony. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th 992, 1000-1001...; Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975-976...; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156....)" (Flatt v. Superior Court (1994) 9 Cal.4th 275, 296.) "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.' (Engelking v. Carlson (1939) 13 Cal.2d 216, 221..., disapproved on other grounds in Siverson v. Weber (1962) 57 Cal.2d 834, 836-837....) The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery. (See Engelking v. Carlson, supra, 13 Cal.2d at p. 221, and cases cited.) Otherwise, ' "expert evidence is conclusive and cannot be disregarded. [Citations.]" ' [Citations.]" (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; see Leonard v. Watsonville Community Hospital (1957) 47 Cal.2d 509, 519 [in case where surgical clamp left in abdomen, court stated: "It is a matter of common knowledge... that no special skill is required in counting instruments [used in surgery]"].)
"In California, the doctrine of res ipsa loquitur is defined by statute as 'a presumption affecting the burden of producing evidence.' (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: ' "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." ' (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489..., quoting Prosser, Torts, p. 295.)" (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)
In Ybarra v. Spangard (1944) 25 Cal.2d 486, for example, the court concluded that the doctrine of res ipsa loquitur applied where the plaintiff, while unconscious on an operating table, received injuries to a healthy part of his body, not subject to treatment or within the area covered by the operation. (Id. at pp. 487-488, 491.) But "evidence that an accident rarely occurs when due care is used does not without more indicate that a particular occurrence is more likely than not the result of someone's negligence. (Siverson v. Weber, supra, 57 Cal.2d 834, 839....)" (Clark v. Gibbons (1967) 66 Cal.2d 399, 412.)
"A presumption affecting the burden of producing evidence 'require[s] the trier of fact to assume the existence of the presumed fact' unless the defendant introduces evidence to the contrary. (Evid.Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in [the] context [of res ipsa loquitur], is that 'a proximate cause of the occurrence was some negligent conduct on the part of the defendant....' (Id., § 646, subd. (c)(1).)" (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 826.)
A presumption affecting the burden of producing evidence is "merely a preliminary assumption in the absence of contrary evidence...." (Assem. Com. on Judiciary com., 29B Pt. 2 West's Ann. Evid.Code (1995 ed.) foll. § 604, p. 59.) The preliminary presumption disappears from the case once the adverse party presents contrary evidence and the trier of fact must weigh the conflicting evidence. (See Evid. Code, §§ 604; 646, subd. (b); Assem. Com. on Judiciary com., 29B Pt. 2 West's Ann. Evid.Code (1995 ed.) foll. § 604, p. 59.) "[W]hen the plaintiff has established the three conditions that give rise to the doctrine, the jury is required to find that the accident resulted from the defendant's negligence unless the defendant comes forward with evidence that would support a contrary finding. [Citation.] If evidence is produced that would support a finding that the defendant was not negligent or that any negligence on his part was not a proximate cause of the accident, the presumptive effect of the doctrine vanishes. However, the jury may still be able to draw an inference that the accident was caused by the defendant's lack of due care from the facts that gave rise to the presumption. [Citation.]" (Law Revision Com. com., 29B Pt. 2 West's Ann. Evid.Code (1995 ed.) foll. § 646, p. 198.)
Once respondents submitted expert opinion that they had not acted negligently in support of their summary judgment motion, the burden shifted to appellant to show a triable issue of material fact. (§ 437c, subd. (p)(2).) Appellant failed to produce any evidence of the factual conditions necessary for application of the res ipsa loquitur doctrine. Appellant failed to establish that the "common knowledge" exception applied and no expert explanation was required. He also failed to submit the declaration of an opposing expert to contradict the opinion of respondents' expert that they had acted with due care. Since appellant failed to show the existence of any triable issue of fact, the trial court properly granted summary judgment. (Cf. Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412-414 [plaintiff's failure to submit declaration of an expert in opposition to summary judgment motion was fatal to negligence cause of action for dental malpractice].)
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.