EPSTEIN, P. J.
Kenneth E. Baptiste was an inmate under custody of the sheriff of the County of Los Angeles (County). Baptiste filed a negligence and intentional tort claim against County for failure to provide medical care under Government Code section 845.6.
Baptiste was arrested for murder in February 1996. He was held in custody awaiting trial at County's Wayside jail. In December 1997, he was transferred to County's Twin Towers jail. Still awaiting trial, Baptiste remained in County custody before being transferred to state prison in 2001. In total, he spent approximately five years in County custody.
According to an inmate complaint form submitted by Baptiste, he first requested treatment for his periodontal disease in February 1996. Around March 28, 1996, Baptiste was punched in the mouth during a fight at Wayside, resulting in the swelling and inflammation of his two front teeth. He was seen by a dentist and given medication for his pain. Baptiste now claims the fight was the start of his dental problems and that they did not preexist his 1996 arrest.
He continued to seek dental care after his transfer to Twin Towers in December 1997. He was examined several times in March 1996. The March 24 progress note states that he was refusing his medications. In August of that year, Baptiste was examined by Dr. Daniel Duran, who found advanced bone loss in three teeth. Baptiste's gums were receding and discharging pus. Duran diagnosed him with advanced periodontitis at those three teeth, with a "hopeless prognosis; non-emergent." Duran recommended extraction but Baptiste refused extraction and requested a periodontist examination. From October 1998 through July 1999, Baptiste was examined by several other doctors who noted similar findings.
Dr. Duran examined Baptiste twice in August 1999, diagnosing him with advanced periodontitis with a hopeless or poor prognosis. Baptiste refused to have his teeth extracted, insisting on seeing a periodontal specialist. Duran found that Baptiste "needs services of a periodontist. There are no periodontists in County employ per our director." Duran advised Baptiste to seek a periodontist upon release from custody but made no reference to the urgency of the situation. The following month, Dr. Donald Hart, a maxillofacial surgeon, conducted a two and one-half hour examination of Baptiste. All intra-oral structures were examined, full X-rays were taken, and every tooth was probed. Hart also concluded Baptiste had severe periodontal disease and recommended full teeth extraction. Baptiste disagreed with the diagnosis.
From October 1999 to November 2000, Baptiste was examined at least six more times and was consistently diagnosed with advanced periodontitis with a hopeless prognosis. During this time, he began writing complaint letters to the American Civil Liberties Union and Michael Antonovich, a member of the Los Angeles County Board of Supervisors. Supervisor Antonovich wrote County Sheriff Leroy Baca asking him to look into Baptiste's complaints. Sheriff Baca wrote to Baptiste on September 15, 2000, informing him that Dr. Hart had reviewed his medical records and reiterated that Baptiste had been diagnosed with advanced periodontitis and bone loss with a hopeless prognosis, but that Baptiste had continuously declined the dental staff's proposed treatment of a full extraction. Baptiste wrote back refuting the sheriff's claims and forwarded the letter to Supervisor Antonovich, who then asked the sheriff to issue another response. Further correspondence between Baptiste, Supervisor Antonovich, and Sheriff Baca continued into 2001, with Baptiste objecting to the extraction procedure.
Baptiste, in propria persona, filed negligence and intentional tort claims against County.
County moved for summary judgment, arguing that it was immune under section 845.6. In support of its motion, County submitted a declaration of periodontal expert Dr. H. Michael Hersh, who after reviewing Baptiste's dental records, concluded Baptiste had preexisting, advanced and chronic periodontal disease at the time he was incarcerated in 1996. He opined that Baptiste's condition did not require immediate treatment and that County had provided adequate dental care.
Baptiste filed an opposition to County's summary judgment motion. He included correspondence with County officials seeking their intervention, transcripts from his underlying criminal case concerning his fitness for trial due to his dental condition, and subsequent medical court orders issued by the criminal trial judge in his case directing County to treat him. Baptiste also objected to Dr. Hersh's expert testimony. Baptiste then filed a cross-motion for summary judgment. In support of his motion, Baptiste filed a package of exhibits that overlapped with the evidence he submitted in opposition to County's motion, but also included his own sworn affidavits, his dental records from jail, and literature from the American Dental Association and the American Academy of Periodontology. County objected to Baptiste's evidence, but not his medical dental records, which it cited in its opposition to his summary judgment motion.
The trial court ruled Baptiste's motion untimely and his evidence unauthenticated and inadmissible. The court also held that even if Baptiste's evidence were admissible, it did not support his cross-motion nor present a triable issue of fact in opposition to County's motion. On the merits, the court concluded that Baptiste's advanced periodontal disease did not warrant immediate care under section 845.6, and in any event, the examinations conducted by the defendants satisfied their standard of care. The court entered summary judgment for County. This timely appeal followed.
Baptiste argues the court made several erroneous evidentiary rulings.
Before reviewing the evidentiary rulings, we must determine what evidence the trial court found admissible and inadmissible.
As to Baptiste's evidence, the trial court referred to it collectively as an "unauthenticated mass of documents." Except for the transcripts from Baptiste's criminal trial, the trial court did not individually address the admissibility of the various documents. Rather, the court made a blanket statement that Baptiste's "unauthenticated evidentiary papers cannot create a disputed issue of material fact because they contain no admissible evidence." We find the trial court ruled all of Baptiste's evidence inadmissible except for his medical and dental records because County did not object to the admission of these records and the court relied on Dr. Hersh's expert testimony which was based upon those records.
We review the trial court's evidentiary rulings on summary judgment for abuse of discretion. (See Miranda v. Bomel Construction Company, Inc. (2010) 187 Cal.App.4th 1326, 1335 ["`Although it is often said that an appellate court reviews a summary judgment motion "de novo," the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]'"].)
Regardless of the standard of review, we find the trial court did not err in its evidentiary rulings. First, Baptiste argues the trial court should have excluded Dr. Hersh's affidavit because Dr. Hersh did not personally examine him. A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that opinion will assist the trier of fact. (Evid. Code, § 801, subd. (a).) The expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116-1117.) Although an expert witness may base his or her testimony on personal examination of the subject matter, it is not required to do so. (See George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 844 [expert witness must base his or her opinion on facts personally observed or on a hypothesis that is supported by the evidence]; see also LeMere v. Goren (1965) 233 Cal.App.2d 799 [when deciding causation and standard of care in medical malpractice suit, court considered expert testimony given by doctors who did not personally examine plaintiff].)
Baptiste offers no general authority requiring a medical expert to personally examine a plaintiff before opining about his or her condition, and we find none. Instead, Baptiste relies on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, to argue that Hersh's declaration had no evidentiary support. In that case, summary judgment was granted in favor of a doctor in a medical malpractice action based upon a nonparty's expert opinion that the defendant doctor did not commit malpractice. (Id. at p. 740.) The expert did not personally examine the plaintiff but relied on plaintiff's medical records that were not submitted by either party as evidence. The court of appeal reversed the trial court, holding that the unauthenticated and inadmissible medical records could not serve as an evidentiary basis for Dr. Hersh's opinion. (Id. at p. 742.) While recognizing that experts can rely on hearsay evidence to form an opinion, the court held they "`may not relate the out-of-court statements of another as independent proof of the fact.'" (Id. at p. 743.) Otherwise, expert testimony would become "a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact." (Ibid.) Thus, because the expert did not have personal knowledge of the plaintiff's condition and only relied on inadmissible documents to form his opinion, his declaration had no evidentiary foundation. (Ibid.)
Here, Dr. Hersh's testimony is based on Baptiste's own evidence, including his dental records and his correspondence with County officials concerning his condition. Hersh cited specific facts from those documents in support of his conclusions. Unlike the medical records in Garibay v. Hemmat, supra, 161 Cal.App.4th at page 743, Baptiste's records were in front of the trial court independent of Dr. Hersh's affidavit. Thus, there is no concern that County is using Dr. Hersh as a back door to circumvent evidentiary rules. County did not challenge the authenticity or admissibility of Baptiste's medical records, and Baptiste cannot now effectively retract his own evidence to block the admission of County's expert testimony.
The trial court also did not abuse its discretion in sustaining County's objection to the rest of Baptiste's evidence. In support of his summary judgment motion, Baptiste submitted transcripts and documents from his underlying criminal case concerning his fitness for trial due to his dental condition. According to the records, in July 1999, the criminal trial judge issued an order instructing County to give Baptiste periodontal treatment. The order read: "Immediate periodontal evaluation and treatment to save teeth several of which are falling out." At a court proceeding the following month, Baptiste's criminal defense attorney noted that Baptiste had still not received periodontal treatment. The judge issued two more orders in September 1999 for periodontal exam and treatment, describing Baptiste's condition as an "Emergency." On September 24, 1999, the trial judge stated he had yet to hear back from County concerning its compliance with his orders. Noting that Baptiste's ongoing condition threatened the progress of the criminal trial, the trial judge held County in contempt and issued an order to show cause.
Baptiste requested judicial notice of the criminal court orders and transcript, pursuant to Evidence Code section 452, subdivision (d), which allows for judicial notice of records of any state or federal court. Judicial notice is appropriate to establish that the criminal court judge was persuaded that Baptiste needed periodontal treatment in order to proceed in the criminal trial. However, these documents do not qualify as a medical opinion that Baptiste needed immediate medical care under section 845.6. Moreover, there is ample evidence that Baptiste was examined many times after the court orders and was found to have a hopeless prognosis. Thus, while judicially noticeable, the orders from the criminal trial judge do not assist Baptiste in raising a triable issue of fact.
Baptiste next argues that the trial court erred by rejecting his motion for an appointed oral disease expert to testify about causation and damages. Evidence Code section 730 permits the court to appoint experts to investigate, report or testify, either on its own motion or on motion of any party.
The trial court denied Baptiste's motion for a court appointed expert, stating in its minute order: "There is no basis for treating [section 730] as an authority for court appointed experts in cases of self-represented indigent litigants." Baptiste does not argue that the trial court abused its discretion in denying the request. Rather, he interprets the minute order to mean that the court did not know it had discretion under section 730 to appoint an expert, and that the court erred in misconstruing the statute. Though evaluating the trial court's reasoning is made difficult by Baptiste's failure to designate a reporter's transcript, we read this statement to mean that the court declined to appoint an expert and noted that section 730 does not require the court to pay the cost of an expert for indigent plaintiffs in a civil suit. We find no authority requiring the court to do so. (See People v. Hurley (1979) 95 Cal.App.3d 895, 898-899 [court has discretion under section 730 to deny indigent criminal defendant's request for an appointed expert].)
We turn to the merits of each party's summary judgment motion. We review the ruling on a motion for summary judgment de novo (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074.), viewing the evidence and inferences in the light most favorable to the opposing party. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In a summary judgment motion, the burden of production is on the moving party to make a prima facie showing there is no triable issues of material fact and that the party is entitled to judgment as a matter of law. (Id. at p. 850.) If the moving party does so, the burden shifts to the opposing party to produce "substantial responsive evidence" showing some triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) If the opposing party is unable to do so, the moving party is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) "The fact that both parties moved for summary judgment does not conclusively establish the absence of a triable issue of fact; the trial court must independently determine the motions." (Tahoe Regional Planning Agency v. King (1991) 233 Cal.App.3d 1365, 1375, fn. 1.)
A defendant seeking summary judgment meets its burden of proof by showing that the plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) Conversely, a plaintiff seeking summary judgment bears the burden to produce admissible evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851.) "[O]therwise, he would not be entitled to judgment as a matter of law." (Ibid., italics omitted.) The moving party must meet its burden by producing "affidavits, declarations, admissions," or other competent evidence. (Code Civ. Proc., § 437c, subd. (b)(1); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720 [neither party may rely on its own pleadings as evidence to support or oppose a motion for summary judgment].) Evidence submitted for or against the motion must be admissible as if being offered at trial. (Code Civ. Proc., § 437c, subd. (c).)
In order for Baptiste to establish his negligence and intentional tort claims, he must first deal with the County's immunity from civil action. A public entity or employee is generally immune from liability for injuries "proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody . . . ." (§ 845.6.) However, liability may be imposed where the entity "knows or has reason to know that the prisoner is in need of immediate medical care and . . . fails to take reasonable action to summon such medical care." (Ibid.) Under section 845.6, the liability of public entities and public employees for failure to provide medical care is limited to serious and obvious medical conditions requiring immediate care. (Watson v. State of California (1993) 21 Cal.App.4th 836, 841 (Watson).) Furthermore, liability is limited to those situations where the public entity intentionally or unjustifiably fails to furnish immediate medical care. (Ibid.)
County's summary judgment motion argues that the undisputed material facts affirmatively show Baptiste did not need immediate medical care, and even if he did, County took reasonable action to summon such medical care. County relies on Dr. Hersh's expert testimony to assert that there are no disputed material facts at issue. Based on Baptiste's medical and dental records, Dr. Hersh concluded that Baptiste had preexisting, advanced, and chronic periodontal disease at the time he was incarcerated in 1996. He concluded that the disease was advanced, progressed naturally while Baptiste was in jail, and that the prognosis for his condition was hopeless, and therefore did not require immediate care. The standard of care also did not require County to send him to a special periodontist because the County jail dentists, who were licensed by the State of California Board of Dental Examiners, are qualified to diagnose and treat periodontal disease. Dr. Hersh noted that County jail physicians and dentists treated plaintiff's disease and symptoms on at least 31 occasions with examinations, probing, radiographic films, cleaning, antibiotics, and extractions. Dr. Hersch concluded that Baptiste received "timely, proper and adequate dental care at all times while [he was] in County jail."
Once County presented expert testimony, the burden shifted to Baptiste to present counter expert opinion. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487 [where the moving party produces competent expert declarations showing that there is no triable issue of fact on an essential element of the opposing party's claim, the opposing party's burden is to produce competent expert opinion declarations to the contrary]; see also Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [if defendant's motion for summary judgment is supported by a declaration of a properly qualified expert stating that defendant met the standard of care, plaintiff can defeat the motion only with a declaration by another properly qualified expert in contradiction].) Baptiste did not submit the requisite expert testimony, either in support of his own summary judgment motion or in opposition to County's motion. Instead he submitted inadmissible evidence, which does not raise a triable issue of fact. (Code Civ. Proc., § 437c, subd. (c).) Even if the evidence was admissible, it did not contain competent expert testimony to counter Dr. Hersh's conclusions. As discussed previously, Baptiste's self-diagnosis and the criminal trial judge's court order do not constitute medical opinion sufficient to raise a triable issue of fact. (See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 849-850 [lay testimony will not support a conclusion that a physician breached the standard of care in the community and does not create a triable issue of fact to defeat a summary judgment motion].) Baptiste also offers an unauthenticated worksheet from his examination by Dr. Duran in September 1999, in which Dr. Duran concluded: "Patient needs services of a periodontist. . . . Advised patient to seek out a periodontist when released." This also does not counter Dr. Hersh's affidavit. Dr. Duran advised Baptiste to seek a periodontist when released from custody, not that his condition required urgent immediate care. Nor did Dr. Duran state that County failed to reasonably summon medical care by only sending him to dentists and not periodontal experts.
Even if County had actual or constructive knowledge of Baptiste's need for immediate care, Baptiste did not show that County failed to reasonably summon such medical care. The failure to summon medical care is not the same as the failure to provide adequate care, and section 845.6 does not impose a duty on prison authorities to monitor the quality of care provided. (Watson, supra, 21 Cal.App.4th at p. 843; see also Nelson v. State of California (1982) 139 Cal.App.3d 72, 81 ["Failure of a practitioner to prescribe or provide necessary medication or treatment to one he or she has been summoned to assist is [medical malpractice] and clearly, as a matter of the plain meaning of the statutory language, cannot be characterized as a failure to summon medical care."].) Accordingly, section 845.6 requires that malpractice actions be brought against the employees, not the public entity. (Watson, supra, 21 Cal.App.4th at p. 842.) Here, it is undisputed that Baptiste was examined by qualified County dentists dozens of times during his time in custody. "[N]o triable facts were presented that [County] knew or had reason to know that the medical care provided . . . was so deficient that it was tantamount to no medical care." (Id. at p. 843.) Any claim that the practitioners did not properly treat his condition constitutes merely a claim of possible malpractice by those practitioners individually; it does not demonstrate the liability of County as a government entity.
County carried its burden of proof and Baptiste did not produce evidence sufficient to raise a triable issue of fact.
The judgment is affirmed.
We concur:
WILLHITE, J.
MANELLA, J.
