NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

David Angel was a prisoner under custody of the State of California (State). Angel filed a negligence claim against State for failure to provide medical care under Government Code section 845.6.1 State's motion for summary judgment was granted on the basis of governmental immunity. In his appeal, Angel argues that the exception to the rule of immunity in section 845.6 applies to his case.2 He also argues the trial court violated his due process rights by accepting State's untimely served evidentiary objections and reply to Angel's opposition to State's summary judgment motion. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Angel injured his arm in August of 1989, resulting in the insertion of metal plates into his arm. In 1997, he was convicted of attempted murder and sentenced to state prison, where he served over seven years before being released on parole in July 2004. He was arrested in August 2006 for violating his parole. While incarcerated at a Los Angeles County jail facility, Angel aggravated the arm injury. In September 2006, Dr. Sina Kasraeian performed orthopedic surgery on Angel to remove the metal plates and a portion of his ulna. Following surgery, Angel was placed on a six-week antibiotic schedule to treat an infection in his arm. Dr. Kasraeian recommended that Angel be evaluated for reconstructive surgery of his ulna once the infection healed.

On November 2, 2006, prior to completion of his antibiotic treatment, Angel was transferred to state custody and placed in the California Institute for Men (CIM) in Chino. He informed the staff of that facility that he was scheduled to see a doctor on November 15 to discuss further surgery. Angel did not see a doctor on that date, but was seen by Dr. Dana Donatto, a family care and general practitioner, on November 27. She ordered an X-ray of his left forearm, aspirin for 60 days, an orthopedic referral, and a follow-up appointment in two weeks. The X-ray revealed that a portion of his ulna had been surgically removed, but Dr. Donatto concluded there were "no significant degenerative changes." Dr. Donatto saw him again in December 2006, and again referred him to the CIM orthopedist.

On December 15, 2006, Angel was transferred to the California Rehabilitation Center (CRC) at Norco. He was seen on his arrival there by nurse Diane Willey. Nurse Willey noted his arm condition, gave him aspirin, suggested he use a low bunk, and told him she would try to get him a follow-up appointment with an orthopedic doctor as soon as possible. He was not seen by any physician during the remainder of his time at CRC, which lasted until February 2007. While there, he could not work or do simple tasks such as carrying his food tray or changing his sheets.

Angel was released from state custody in February 2007. After his release from prison, he sought medical treatment at several emergency rooms in Los Angeles and Orange counties but was turned away. On April 10, 2007, he saw Dr. Steven Brourman, an orthopedic surgeon. Dr. Brourman did not perform reconstructive surgery at that time because Angel's arm needed to undergo physical therapy for several months prior to surgery. Dr. Brourman performed the surgery on September 11, 2007.

Angel filed a negligence claim against State and the County of Los Angeles (County). In his second amended complaint, the charging pleading, he alleged that County's failure to provide adequate medical care violated his rights under the Eighth Amendment of the federal Constitution. He also alleged that State, and 50 fictitiously named state law enforcement and medical personnel, violated section 845.6 by neither conducting reconstructive surgery of his ulna nor providing orthopedic treatment to help with his pain. In his suit, Angel included a tort and federal civil rights allegation against Los Angeles County Sheriff Lee Baca and 25 fictitiously named county law enforcement officers and medical personnel. 3

On December 3, 2008, the court granted summary adjudication on the civil rights claim against Sheriff Baca and the Doe defendants, and dismissed the intentional tort claim on the pleadings. The court also granted the County's motion for summary judgment on the negligence action, finding that "[r]reconstructive surgery is not necessary immediate medical care. And the county is immune from liability under Government Code 845.6."

On April 15, 2009, State moved for summary judgment, arguing that Angel only alleged that it failed to provide "necessary" or "adequate" medical care, not "immediate medical care" as required under section 845.6 in order to invoke the exception to immunity. State also argued that, in any event, the trial court had ruled in respect to County that reconstructive surgery of Angel's ulna did not constitute "immediate medical care" for the purposes of liability under section 845.6. In his opposition, Angel submitted declarations by himself, a fellow inmate, Dr. Brourman, Dr. Kasraeian, Dr. Donatto, and Nurse Willey. He also included his medical records from the county facility and state prison.

The trial court concluded that based on Angel's own submitted evidence, his condition did not require immediate care, and that in any event, he received medical care through the examinations by Nurse Willey and Dr. Donatto. The court entered summary judgment for State. This timely appeal followed. State is the only respondent in this appeal.

DISCUSSION

I

Angel argues the court violated his due process rights by considering papers filed by State over his objection that they were served late.

In response to Angel's opposition to the summary judgment motion, State timely filed evidentiary objections and a reply. State attempted to serve Angel with a copy of the papers, but sent them to the wrong location. Angel's attorney received them a day before the summary judgment hearing. At the hearing, Angel objected to the submission of the documents but did not request additional time or a continuance. The court noted that "[y]ou got it before the hearing, in any event," and stated that it had "viewed everything" in coming to the decision. After the hearing, the court issued its rulings on State's evidentiary objections. It admitted the declarations by Nurse Willey and Dr. Donatto and the corresponding medical records, but sustained objections to Dr. Kasraeian's declaration and corresponding records and to certain statements made by Dr. Brourman.

Due process may require reversal of a judgment when a party is prevented from having his or her full day in court. (See County of Fresno v. Lehman (1991) 229 Cal.App.3d. 340, 347.) Code of Civil Procedure section 437c, subdivision (b)(4), states: "Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." California Rules of Court, rule 3.1354(a), requires that objections to evidence in support of or in opposition to a summary judgment motion be served and filed at the same time as the party's opposition or reply papers, unless excused by the court on a showing of good cause.

While Angel's trial counsel objected to the untimely service of the reply and objections, she did not ask the trial court for a continuance or additional time to address the pleadings. Nor did she ask the court to strike them.4 Angel argues the trial court violated his due process by failing to affirmatively offer a continuance, but gives no authority to support this assertion. Although the papers were several days late in reaching Angel, his counsel had a day to review them and was able to present his case at the summary judgment hearing. Moreover, as to the evidentiary objections, the trial court noted that it considered "everything" when evaluating the motion for summary judgment and specifically cited Angel's evidence in its order granting summary judgment. Thus, despite sustaining the majority of State's objections, the trial court considered Angel's evidence in reaching its conclusion.

Finally, Angel argues the court erred in first ruling his evidence inadmissible and then citing that same evidence in support of State's summary judgment motion. Angel's inadmissible evidence cannot create a triable issue of material fact. (Code Civ. Proc., §437c, subd. (c).) The court simply held that even if Angel's evidence had been admissible, summary judgment was appropriate as a matter of law. We find no error.

II

We turn to the merits of State's summary judgment motion.5 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.) 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).) The burden of production is on the moving party to make a prima facie showing there are no triable issues of material fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) If the moving party makes that showing, the burden shifts to the opposing party to produce "substantial responsive evidence" showing some triable issue of material fact. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) 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.)

For Angel to establish his negligence claim, he must first deal with State'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.)

State's summary judgment motion argues that the undisputed material facts affirmatively show Angel did not require immediate medical care, and even if he did, State took reasonable action to summon such medical care. State relies on statements made by Dr. Donatto, who examined Angel twice during his time at MIC. While noting that a portion of his ulna had been surgically removed, Dr. Donatto did not see any acute condition, inflammation, or swelling and concluded "[e]verything on there looked old." After her second examination she wrote, "Refer to orthopedics" on the X-ray report and signed it. Under the section "Requested treatment services," Dr. Donatto circled "Consultation" instead of "Procedure" and "Routine," as opposed to "Emergent" or "Urgent." She testified that while it was necessary for Angel to see an orthopedic doctor for consultation, based on the X-ray report and her personal examination, she did not feel that he needed to be seen by orthopedists immediately, and did not believe any procedure would have been done at that time.

Once State presented this evidence, the burden shifted to Angel 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].) He presented a declaration by Dr. Brourman, who stated that after first examining Angel in April 2007, he concluded that Angel had not received the necessary treatment for his arm. Dr. Brourman also stated that "it was absolutely necessary that [Angel] obtain orthopedic treatment" after his infection healed, "to determine if physical therapy, neuro diagnostic treatment or elbow reconstruction surgery was immediately necessary." Due to the delay, Angel lost significant arm strength and experienced pain.

Angel argues that a need for immediate medical care arose as soon as his infection healed and that State had a duty to summon orthopedic care to treat his condition. Appellant cites Jett v. Penner (9th Cir. 2006) 439 F.3d 1091, to support his position. In that case, plaintiff fractured his thumb while in state prison. He was examined by a general practitioner in prison and was referred to an orthopedist to set and cast his fracture but was never seen by one until he was transferred to another state facility months later. (Id. at pp. 1094-1095.) Plaintiff sued the prison physicians under the Eighth Amendment and section 845.6. As to the section 845.6 claim, the magistrate court granted defendants summary judgment because plaintiff's claim centered on the adequacy of the treatment provided, not whether the treatment was summoned. (Id. at p. 1096.) The Ninth Circuit disagreed, holding that a need for immediate medical care includes diagnosis and treatment, and thus, can arise more than once in an ongoing serious medical condition. The court concluded that while plaintiff was seen by general prison physicians, the subsequent referrals for orthopedic care created a new duty to summon orthopedic care once a need for immediate medical care arose. (Id. at p. 1099.) The court held that such a need arose "as soon as his swelling subsided and his fracture could be reduced and a cast applied." (Ibid.)

Angel argues that under Jett v. Penner, supra, 439 F.3d at pages 1098, 1099, "immediate medical care" incorporates "serious medical need," which the court defined as a condition that "`could result in further significant injury or the "unnecessary and wanton infliction of pain."'" (Id. at p. 1096.)6 Jett v. Penner is a federal decision interpreting state substantive law and is not binding authority in state court. (JPI Westcoast Construction, L.P. v. RJS & Associates, Inc. (2007) 156 Cal.App.4th 1448, 1465, fn. 2.) While we note that California courts have similarly limited liability under section 845.6 to "serious and obvious medical conditions," (Watson, supra, 21 Cal.App.4th at p. 841), the Ninth Circuit's interpretation would read out any temporal limitation to section 845.6. Angel offers no California authority to support the Ninth Circuit's expansive reading of section 845.6.

In any event, nothing on the record here suggests that the reconstructive surgery itself was a matter of immediate necessity. While Dr. Brourman noted orthopedic treatment was necessary to determine whether Angel required reconstructive surgery, Dr. Brourman did not conclude that the surgery itself was immediately necessary. In fact, none of the physicians who saw Angel came to such a conclusion. Dr. Donatto stated that seeing an orthopedic doctor was not immediately necessary and Dr. Kasraeian recommended Angel be evaluated for possible surgery once the infection healed following his first surgery. Finally, the fact that the reconstructive operation was done several months after Angel's first meeting with Dr. Brourman demonstrates that the surgery itself did not constitute "immediate medical care" under section 845.6. Alternatively, Angel argues that obtaining an orthopedic consultation and receiving orthopedic treatment in preparation of surgery were immediately necessary. Dr. Brourman concluded that if Angel "had received immediate treatment on or nearly on November 15, 2006, the result of my treatment of [Angel] would have been more effective." Even if it were true that the result of Dr. Brourman's eventual operation would have been more effective if Angel had been treated earlier it does not raise his situation to "immediate medical care" for the purposes of section 845.6.

Finally, Angel claims he experienced great pain and that orthopedic consultation and treatment were immediately needed to address that pain. Angel's medical records demonstrate that he was given medical care and treatment for his pain. That orthopedic treatment would have been more effective does not establish that State failed to summon medical care to address and treat his pain. 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.) Angel attempts to distinguish Watson by arguing that the plaintiff in Watson was suing the state because its doctors improperly diagnosed and treated his medical condition. In contrast, Angel is not claiming Dr. Donatto or Nurse Willey inadequately treated him, but that State failed to summon orthopedic care, as recommended by Dr. Donatto and Nurse Willey. We find no distinction. Angel is claiming orthopedic treatment would have been better for his pain than the medication provided to him. That he is not criticizing the particular work of Dr. Donatto or Nurse Willey does not mean he is not critiquing the quality of care summoned by State.

Thus, we conclude Angel was not in need of immediate medical care to reconstruct or treat his arm, and insofar as he required immediate care to treat the pain caused by his arm, State reasonably summoned such care.

DISPOSITION

The judgment is affirmed.

We concur:

WILLHITE, J.

SUZUKAWA, J.