Green v. Suzuki CA2/7 ( 2022 )

Filed 2/28/22 Green v. Suzuki CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GABRIEL GREEN, B295980
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. EC063893)
v.
DANIEL SUZUKI et al.,
Defendants and Respondents.
APPEAL from the judgment of the Superior Court of
Los Angeles County, William D. Stewart, Judge. Affirmed.
Gabriel Green, in pro. per., for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Michael V. Lamb and
John S. Cayley for Defendants and Respondents.
__________________________
Gabriel Green appeals from a judgment entered after the
trial court granted the motion for summary judgment filed by
defendants Daniel Suzuki, M.D., and San Marino Psychiatric
Associates (SMPA), in which Dr. Suzuki is a partner. Green
brought claims for professional negligence, abuse and neglect of a
dependent adult, and intentional infliction of emotional distress
alleging Dr. Suzuki and SMPA failed to provide adequate care to
Green while he was involuntarily committed to the Aurora Las
Encinas Hospital (LEH) under Welfare and Institutions Code
section 5150.1 The trial court concluded Dr. Suzuki and SMPA
carried their burden to show Dr. Suzuki’s treatment of Green was
within the standard of care and did not cause Green’s injuries.
Green submitted no evidence in opposition, and the court granted
the summary judgment motion, finding Green failed to meet his
burden to raise a triable issue of fact.
On appeal, Green contends the trial court erred in
determining Dr. Suzuki and SMPA carried their initial burden to
show that Green could not establish the elements of his causes of
action as alleged in the operative complaint, and even if
Dr. Suzuki and SMPA carried their burden, there are triable
issues of fact. We affirm.
1 All further undesignated statutory references are to the
Welfare and Institutions Code. Section 5150 authorizes peace
officers and certain mental health professionals to hospitalize
persons perceived to be a danger to themselves or others for a
72-hour mental health evaluation.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Green filed this action on June 12, 2015 against Dr. Suzuki,
SMPA, LEH, and others. Green’s operative corrected second
amended complaint alleged causes of action against Dr. Suzuki
and SMPA for professional negligence, abuse and neglect of a
dependent adult, and intentional infliction of emotional distress. 2
Green alleged that on March 13, 2014 he was evaluated for
chest pain at UCLA medical center. The treating physicians
determined the pain was likely caused by anxiety. Green had a
history of mental illness, including major depression. Due to a
bed shortage, Green was told he would need to transfer to
another hospital for psychiatric treatment. Green requested a
transfer to LEH because of its excellent reputation and because
he had been a patient there in 2007. Dr. Noble, a psychiatrist at
UCLA medical center, told Green the transfer to LEH was more
likely to be approved if Green were suicidal because admissions
for involuntary commitments under section 5150 were given
priority by LEH. Dr. Noble placed Green on a 5150 hold.
Green was transported by ambulance and admitted to
LEH. At the nurses’ station, a mental health worker named
2 Green alleged causes of action against LEH and the other
defendants for “[h]ospital [n]egligence,” negligent retention and
supervision, violation of Civil Code section 56, violation of
Welfare and Institutions Code section 5328, public disclosure of
private facts, invasion of privacy, negligence, and battery. LEH
and the other defendants are not parties to this appeal, and those
claims are not before us.
3
Chris asked Green to turn over his cell phone. Green told Chris
he needed his phone to conduct business by text and email, but
Chris took his phone. Chris told Green, “‘Anytime you need to
use your phone, just come to me and I’ll let you use it here in the
nurses’ station.’” Green signed an agreement with LEH that
provided LEH’s rules and regulations, but Green struck out the
language limiting his use of his cell phone and requiring him to
relinquish it to hospital staff.
By this time Green was hungry because he had not eaten
since lunch, and he asked Chris for dinner. Chris stated the
kitchen was closed, but at 3:00 a.m.—at least four hours later—
Chris brought Green a ham sandwich. Green started to eat the
sandwich, but he could taste that the mayonnaise and cheese in
the sandwich had spoiled.
When Chris escorted Green to his room, another patient
was asleep in one of the beds. Chris told Green to undress and
hold his buttocks apart for a search. Green told Chris he did not
feel comfortable undressing, but Chris explained it was LEH
policy to conduct such a search because there were “a lot of drug
addicts” in the hospital, and Chris needed to make sure Green
did not have any drugs or contraband. When Green undressed,
the other patient in the room was awake and could see him, and
the door to the hallway was open, allowing those in the hallway
to see into the room. Green alleged the strip search was not
mandatory, and Dr. Suzuki or another more senior staff member
could have waived the requirement.
Shortly after the strip search, a member of the LEH staff
named James informed Green he needed to provide a urine
sample for a drug test. While Green urinated into a cup, James
4
watched him. James did not provide Green with a consent form
to sign until after Green had given the sample.
Early the following morning, on March 14, Green could not
sleep due to pain and anxiety. He requested his prescription
medications from the nurses’ station, but the nurses told him
they could not help because it was time for a shift change. While
Green remained in the hallway, he heard the nurses laughing
and discussing the results of his drug test. One nurse stated,
“‘Oh yeah, looks like he’s positive for oxycodone and benzos . . .
wow, and morphine and amphetamines too!’” Another patient
who had overheard the nurses approached Green and stated, “‘I
was addicted to Oxy[c]ontin too, just like you! . . . What else do
you like to take to get high?’” Green responded his medications
were legally prescribed.
Later that morning Green again approached the nurses’
station and requested his medications. The pharmacist read off a
list of medications for Green, but she omitted his prescriptions for
Adderall, Synthroid, famotidine, and oxycodone. The pharmacist
told Green these medications were not in stock and were not
available. Green believed this was false. The pharmacist told
Green that Dr. Suzuki would have to order the medications.
Green requested the pharmacist or Dr. Suzuki contact his
physicians as soon as possible to confirm his prescriptions. A half
hour later, the pharmacist informed Green she had reached the
on-call physician, who ordered Norco for pain relief. Green
alleged Norco was not the equivalent of his usual medication of
oxycodone, which Dr. Suzuki had ordered be discontinued. Due
to the substitution of Norco for oxycodone, Green experienced
severe pain, nausea, and other symptoms of withdrawal.
5
Later on March 14 staff members led Green and other
patients outside to an enclosed area. Green was the only
nonsmoker to go outside with the group. While outside, another
patient blew smoke in Green’s face. Green later had an asthma
attack. Further, his clothes smelled of smoke, but he was not
given a change of clothes or allowed to shower.
Later that day Green requested to use his cell phone. The
nurse told Green he was not allowed to have his cell phone and
he would need Dr. Suzuki to order an exception. Green requested
a consultation with Dr. Suzuki. In the late evening, Dr. Suzuki
saw Green. Dr. Suzuki told Green he could not authorize Green
to use his cell phone, but Green could retrieve phone numbers
from his phone to call using the unit phone. Green told
Dr. Suzuki he was suffering from pain and “having new pain that
he recognized as an incipient gout attack.” Green requested his
medications and a low-purine diet. During the course of his
treatment at LEH, Green saw Dr. Suzuki on two more occasions.
Dr. Suzuki never refilled Green’s medication or met his dietary
requests.
Green was not allowed to access his cell phone until the
next day. When Green checked his phone, he saw he had missed
multiple text messages and voicemails, but he was not allowed to
check the notifications because he was only allowed to write down
phone numbers from his contact list. Green had to use a pay
phone in the unit hallway to make phone calls, which was only
operable during certain times of day, and he often had to wait for
another patient to finish a call. Green alleged that requiring him
to use the pay phone violated his right to confidentiality because
it forced him to disclose the pay phone number to the people he
called, which revealed he was a patient in a psychiatric hospital.
6
Green alleged Dr. Suzuki’s conduct violated Green’s right
to privacy (42 C.F.R., § 482.13(c)(1)); to receive care in a safe
setting (id., § 482.13(c)(2)); to be free from abuse and harassment
(id., § 482.13(c)(3)); to confidentiality of his clinical records (id.,
§§ 482.13(d)(1), 482.24(b)(3)); to have his own physician notified
promptly of his admission to the hospital (id., § 482.13(b)(4)); to a
menu that met his needs (id., § 482.28(b)(1)); to keep and use his
own personal possessions (Welf. & Inst. Code, § 5325, subd. (a));
to have reasonable access to telephones to make and receive
confidential calls (id., § 5325, subd. (d)); to dignity, privacy, and
humane care (id., § 5325.1, subd. (b)); to be free from harm,
including isolation, abuse, and neglect (id., § 5325.1, subd. (c)); to
receive prompt medical care and treatment (id., § 5325.1,
subd. (d)); to physical exercise and recreational opportunities (id.,
§ 5325.1, subd. (h)); to nourishment and between-meal feedings
(Cal. Code Regs., tit. 22, § 71243, subd. (a)(3)); to his food
preferences and dietary needs (id., § 71243, subds. (a)(4), (f),
(g)(4), (h), (i)(1) & (2)); to his prescribed medications (id.,
§ 71233); and to privacy in patient rooms and bathrooms (id.,
§ 71619).
Green was discharged from LEH on March 16, 2014. Green
lost business and missed business development opportunities
from being unable to access his cell phone during his
confinement. Further, Green’s experience at LEH traumatized
him.
Green alleged Dr. Suzuki was professionally negligent3 in
waiting an unreasonable amount of time to see him (nearly
3 Each cause of action alleged conduct by Dr. Suzuki but
sought to hold Dr. Suzuki and SMPA liable for the conduct.
7
24 hours); failing to provide Green’s prescribed medications;
curtailing Green’s access to his cell phone; failing to treat Green’s
pain, gout, insomnia, and sleep apnea; and failing to ensure the
accuracy of the information in Green’s chart. Green alleged his
injuries from Dr. Suzuki’s conduct caused him to be permanently
disabled.
As to his cause of action for dependent adult abuse and
neglect, Green alleged Dr. Suzuki failed to meet Green’s physical
and mental health needs; failed to provide Green with food and
clothing; failed to protect Green from health and safety hazards;
and isolated Green by not allowing him access to his cell phone.
With respect to his cause of action for intentional infliction of
emotional distress, Green alleged Dr. Suzuki “ignored [Green]’s
requests for medication for pain, sleep, gastric reflux, and thyroid
disease, even though they saw that [Green]’s lack of proper
medical care was causing [him] severe emotional and physical
pain.” Green alleged Dr. Suzuki’s professionally negligent
conduct was “done with the intent to cause severe emotional
distress, or with reckless disregard of the probability of causing
[Green] severe emotional distress.”
B. Dr. Suzuki and SMPA’s Motion for Summary Judgment
On December 8, 2017 Dr. Suzuki and SMPA moved for
summary judgment, setting a hearing date for February 23, 2018.
They argued Dr. Suzuki’s conduct in treating Green was within
the standard of care for a treating psychiatrist. Further,
Dr. Suzuki’s actions did not cause Green’s injuries. SMPA
asserted it could not be liable absent liability of Dr. Suzuki.
Dr. Suzuki and SMPA filed a declaration from a doctor
certified in forensic psychiatry, Robert Linden, M.D. Dr. Linden
8
opined that based on his review of Green’s March 2014 treatment
records at LEH, Dr. Suzuki “met the standard of care for a
psychiatrist in all respects in the care and treatment provided to
Mr. Green.” Dr. Linden opined Green’s “medications were
changed appropriately” and “it is within the standard of care to
substitute Norco for Oxycodone.” Dr. Linden averred a body
search of a patient admitted on a section 5150 hold is within the
standard of care to ensure the patient is not in possession of illicit
substances or objects that could be used for self-harm. That
Dr. Suzuki saw Green within 24 hours of admission was within
the standard of care. It was “further within the standard of care
to consider a [section] 5150 patient’s cell phone a contraband
item,” and a cell phone was contraindicated for a patient such as
Green experiencing symptoms of a manic episode. It was also
within the standard of care for Dr. Suzuki to rely on family
medicine specialist Dr. Philip Zhuo’s assessment of Green’s
“physical pain and maladies.” Dr. Linden opined Green’s
documented use of the unit telephone multiple times on March 14
and 15 provided Green sufficient access and was reasonable and
within the standard of care. Further, Green’s records showed he
requested a regular diet, not a low-purine diet. Finally, the
practice of sharing outdoor recreation space between smoking
and non-smoking patients did not fall below the standard of care.
Dr. Linden further opined “to a reasonable degree of
medical probability that there is nothing that Dr. Suzuki did or
failed to do in violation of the standard of care that caused or
contributed to any injury alleged by plaintiff.” Dr. Linden
continued, “[a]ny failure to provide a low-purine diet at LEH did
not cause plaintiff any injury. . . . The effect of following (or not
following) a low purine diet would take weeks to manifest, so not
9
following such a diet for three days would have little to no effect
on plaintiff’s gout.” Further, “[t]he failure to take Synthroid for
three days would likewise not cause plaintiff to suffer any pain or
complications. There are further no indications in the records
that [Green] suffered any thyroid issues during his three day
hospitalization. Thus, to a reasonable degree of medical
probability, any failure to prescribe Synthroid did not cause
[Green] any damage.” In addition, “[t]here would be no negative
clinical impact if he did not have Adderall, Synthroid, or
Famotidine (Pepcid) for three days . . . . Adderall is further a
stimulant and would be relatively contraindicated when there is
a concern that the patient is in a manic episode.” Green was
prescribed Norco and baclofen, but the baclofen “was never
administered, indicating that [Green] did not have severe pain.”
Dr. Suzuki and SMPA also filed a declaration by
Dr. Suzuki, in which he averred he is a practicing psychiatrist,
the medical director of LEH, and a partner at SMPA. Dr. Suzuki
stated it was LEH’s policy for each new patient admitted on a
section 5150 hold to undergo “a skin integrity check to determine
that he or she did not bring any contraband into the facility and
that they did not have any wounds that needed attention.”
Dr. Suzuki explained this was not a body cavity search, but
rather, “the new patient is asked to remove their clothing and
spread their legs apart,” and the patient’s “buttock cheeks are not
violated by the staff.” Dr. Suzuki stated, “Standard protocol also
requires that each patient provide a monitored urine sample
upon admission” to “ensure the authenticity of the sample.”
Dr. Suzuki averred he did not conduct the skin integrity check or
urine sample collection for Green and “did not authorize either of
these procedures to be performed in a manner outside protocol.”
10
Further, Dr. Suzuki “did not authorize . . . any disclosure of
Mr. Green’s medical information to other patients.”
Dr. Suzuki declared, “The patients are welcome to shower
at any time.” Cell phones with cameras are not permitted in the
unit “due to concerns over patients being able to take pictures of
other patients.” According to Dr. Suzuki, Green’s alleged
complaints of unmet medical and dietary needs would have been
recorded in Green’s records, but the records contained no such
complaints.
Dr. Suzuki averred he “never intended to injure or cause
[Green] any physical or emotional harm.” He explained, “For
each patient that I see at LEH, I endeavor to provide the
psychiatric care that I believe will best help them, given their
psychiatric history. I honestly and in good faith believe I
provided appropriate care to [Green] consistent with this custom
and practice.” Dr. Suzuki continued, “I was not aware and in
good faith do not believe that any staff member at LEH
intentionally or purposefully failed to provide necessary medical
or psychiatric care to Mr. Green. [¶] . . . I was not aware and do
not believe that any staff member, or owner, maintainer,
manager or operator, of LEH intentionally engaged in conduct to
cause substantial harm to plaintiff.” Dr. Suzuki stated he did not
intend to isolate Green during his hospitalization. Dr. Suzuki
believed his psychiatric medication prescriptions for Green were
appropriate and “any physical pain or condition would be or were
being addressed by the family medicine specialist,” who
customarily handled patients’ medical needs. Dr. Suzuki
continued, “physical pain and medical ailments are not within my
purview as the attending psychiatrist.”
11
Dr. Suzuki and SMPA attached what they identified as
“pertinent portions” of Green’s medical records, including
excerpts of records documenting Green’s treatment at LEH.4
C. Green’s Opposition to the Motion for Summary Judgment
and Multiple Continuances of the Motion
On February 21, 2018, on its own motion, the trial court
continued the hearing on Dr. Suzuki and SMPA’s summary
judgment motion to March 29, 2018 due to staffing issues. On
March 29 Green filed an ex parte application to continue the
motion again because Green was seeking to obtain new counsel to
4 Two days before oral argument (on February 2, 2022)
Green filed a motion to seal portions of the record on appeal
(including Green’s medical records attached to Linden’s
declaration and pleadings referencing the records) and to strike
the respondents’ brief. On February 22, 2022 Green filed an
“amended and superseding emergency motion” for similar relief.
Green’s first motion to seal, filed almost two years after he filed
his March 23, 2020 motion to augment the record (submitting
most of the documents he now asserts should be sealed), is
untimely. Further, because the documents are publicly available
in the trial court, Green cannot meet his burden under California
Rules of Court, rule 2.550(d) to show there is an overriding
interest in sealing the documents. (See also Cal. Rules of Court,
rule 8.46(c) [“A record filed or lodged publicly in the trial court
and not ordered sealed by that court must not be filed under seal
in the reviewing court.”].) Accordingly, the amended and
superseding emergency motion is denied. Green’s motion to file
supplemental pleadings, filed on the day of oral argument, is
denied as untimely.
12
represent him in the matter.5 The trial court granted the
application and continued the hearing to July 27, 2018.
On July 20, 2018 Green filed an opposition to Dr. Suzuki
and SMPA’s summary judgment motion. Green argued
Dr. Suzuki and SMPA failed to carry their burden to show Green
could not establish an element of his causes of action because the
declarations of Drs. Linden and Suzuki were not admissible,
competent evidence. Green further argued triable issues of fact
existed based on the declaration of Dr. Daniel Fast, Green’s
treating psychiatrist and expert witness. Green’s statement of
facts referred to a declaration of Dr. Fast, but no declarations
were submitted with the opposition papers. Green also filed 116
evidentiary objections asserting boilerplate objections to the
declarations of Drs. Linden and Suzuki.
On July 26 Green filed an ex parte application to continue
the summary judgment motion, attaching a two-page letter from
Dr. Fast signed under penalty of perjury. Dr. Fast did not
provide his qualifications (other than he is an “M.D.”), and he
acknowledged he had not “review[ed] a copy of the hospital
medical record.” However, Dr. Fast noted that Dr. Suzuki failed
to coordinate Green’s discharge with Dr. Fast, and instead
Dr. Fast learned from Green that he had been discharged.
Further, Dr. Fast recounted that in Green’s sessions with him,
Green “alluded to the intrusive and emotionally traumatic nature
of the strip search.” Dr. Fast added that Dr. Linden did not
testify at his deposition about the interaction between Green and
the person who performed the strip search or Green’s reaction to
5 On November 3, 2017 the trial court granted a motion filed
by Green’s attorney, Gary S. Brown, to be relieved as counsel.
13
it, and “[i]t appears that there was no follow up evaluation or
care by the staff or Dr. Suzuki of Mr. Green’s intense negative
emotional reaction to his procedure, no matter how well
indicated.” Dr. Fast opined “the care rendered to [Green] under
the direction of Dr. Suzuki fell below the usual inpatient
psychiatric standard of care, resulting in Acute Post Traumatic
Stress Disorder.” The next day the court continued the summary
judgment motion to September 14, 2018.
On September 14 Green filed another ex parte application
to continue the motion, requesting time to conduct additional
discovery and to complete declarations by Dr. Fast and an
unidentified witness. Green attached a declaration from Dr. Fast
in which he stated, “I have been extremely busy . . . . I
respectfully request 14 days additional time to fully review all
the records in this matter, including all of [Green’s] treatment
records, so that I may properly complete the [d]eclaration.” The
trial court granted Green’s application and continued the hearing
to October 12, 2018.
Green failed to file any further opposition to the motion or
supporting evidence.
D. Dr. Suzuki and SMPA’s Reply on Summary Judgment
On September 7, 2018 Dr. Suzuki and SMPA filed a reply
in support of their summary judgment motion. They argued
Green’s July 20, 2018 opposition should be stricken as untimely
and incomplete, but they also addressed the arguments Green
made in the opposition. They asserted the letter declaration of
Dr. Fast, which Green attached to his July 26, 2018 ex parte
application for a continuance, was inadmissible and inadequate
to create a triable issue of fact on Green’s claims.
14
E. The Trial Court’s Ruling and Entry of Judgment
Green’s attorney appeared by telephone at the October 12,
2018 hearing on the summary judgment motion and orally moved
for another continuance. Green’s attorney informed the court
Green intended to make “an ex parte application to shorten time
to hear the renewed motion for leave to file a third amended
complaint,” which a friend of Green was supposed to serve on
defense counsel at the hearing, although the friend did not
appear. By the time of the hearing, the ex parte application had
not been served on defense counsel or filed with the court. The
court denied the request for a continuance, noting the summary
judgment motion was initially set for February 2018 and had
been continued four times. The court adopted its tentative ruling
granting Dr. Suzuki and SMPA’s motion for summary judgment.
In its written ruling, the court found Green had failed to
comply with Code of Civil Procedure section 437c,
subdivision (b)(3), because his separate statement in support of
his opposition did not contain any page or paragraph numbers for
the two pieces of supporting evidence (Dr. Fast’s purported
declaration and an unidentified exhibit).6 As to Green’s cause of
action for professional negligence, the court found the undisputed
evidence submitted by Dr. Suzuki and SMPA showed Green could
not establish Dr. Suzuki breached the standard of care in
treating Green and could not establish Green’s injuries were
6 The separate statement consistently provides as to
disputed facts, “(Dr. Fast Decl., ¶ ; Exh. , pgs. )” or, as to several
facts, “(Exh. U, pg. ).” The appellate record does not contain
either a declaration from Dr. Fast or an exhibit U filed by Geen
in opposition to the summary judgment motion.
15
caused by Dr. Suzuki’s conduct. With respect to Green’s cause of
action for dependent adult abuse and neglect, the court found the
undisputed evidence showed Dr. Suzuki met Green’s treatment
needs, lacked the requisite mental state, and did not engage in
conduct that injured Green. The court found as to Green’s cause
of action for intentional infliction of emotional distress that the
undisputed evidence showed Dr. Suzuki’s conduct was within the
standard of care and was not extreme and outrageous. With
respect to SMPA, the court found that because Dr. Suzuki’s
conduct was not actionable, SMPA could not be liable for the
conduct. The court did not address Green’s evidentiary
objections.
On November 1, 2018 the trial court entered a judgment of
dismissal in favor of Dr. Suzuki and SMPA. As discussed below,
Green timely appealed.
DISCUSSION
A. Green’s Appeal Is Timely
On November 13, 2018 Green filed a notice of intention to
move for a new trial, setting a hearing date for December 7, 2018.
Two days later Dr. Suzuki and SMPA served Green with notice of
entry of judgment. On November 27 Green filed a memorandum
of points and authorities in support of his new trial motion.
On December 7 Green did not appear at the hearing on his
new trial motion. The trial court adopted its tentative ruling and
denied Green’s motion based in part on Green’s failure to serve
and file his memorandum of points and authorities within
10 days of filing his notice of intention to move for a new trial, as
required by Code of Civil Procedure section 659a and California
16
Rules of Court, rule 3.1600.7 On the same day, Dr. Suzuki and
SMPA served on Green notice of the trial court’s ruling denying
the new trial motion. The notice stated, “The tentative ruling to
deny plaintiff’s motion for new trial was adopted as the final
ruling.” (Capitalization omitted.) Dr. Suzuki and SMPA
attached to their notice a copy of the court’s tentative ruling but
not the court’s order.
On January 14, 2019, the 60th day following Dr. Suzuki
and SMPA’s service of notice of entry of judgment, Green timely
appealed from the judgment. (Green v. Signature Healthcare
Services, LLC et al., B295164.) But on February 4 Green
abandoned the appeal. In the meantime, on January 25 Green
moved in the trial court for reconsideration of the court’s order
denying his new trial motion, which the court denied. And on
February 13 Green filed a motion to vacate the court’s August 27,
2018 order denying him leave to file a third amended complaint,
which the court later denied.8
On February 15, 2019 Green filed a second notice of appeal
from the judgment, which initiated the present appeal. On
May 20, 2019 Dr. Suzuki and SMPA moved to dismiss the appeal
as untimely. Dr. Suzuki and SMPA argued the February 15
notice of appeal was filed 92 days after the date they served
Green with the notice of entry of judgment. They contended
Green’s November 13, 2018 notice of intention to move for a new
trial did not extend the time to appeal because it was not a
7 All further citations to rules are to the California Rules of
Court.
8 The record does not contain the trial court’s order denying
Green’s motion to vacate the court’s August 27, 2018 order, but it
is undisputed the court denied the motion.
17
“valid” notice, as required by rule 8.108(b) because Green’s new
trial motion was later deemed procedurally deficient.
Green opposed the motion to dismiss, arguing rule 8.108(b)
required only the filing of a valid notice of intention to move for a
new trial, which he had filed. Green asserted he “actually e-filed
[and served] his Notice of Appeal on February 13, 2019,” but it
was rejected by the superior court clerk on February 15. Green
contended his notice of appeal should be deemed filed as of
February 13 and thus was timely filed 90 days after Dr. Suzuki
and SMPA served Green with notice of entry of judgment, based
on “the 30-day extension . . . under Cal. Rules of Court, rule
8.108(b)(1)(A).” Green also argued Dr. Suzuki and SMPA’s
December 7, 2018 notice of ruling on Green’s new trial motion
was not a “notice of entry of . . . order” denying the new trial
motion and thus did not trigger the 30-day extension under rule
8.108(b)(1)(A). Thus, his time to appeal was extended to 180 days
after entry of judgment under rule 8.108(b)(1)(C).
On July 18, 2019 this court issued an order stating, “The
court is tentatively of the view that the appeal is timely and that
the motion to dismiss should be denied. . . . The issue of
timeliness may be reexamined by the panel assigned to hear the
merits of the appeal.” In their respondents’ brief, Dr. Suzuki and
SMPA now contend that even if Green’s notice of intention to
move for a new trial was valid, his appeal is still untimely
because under rule 8.108 (b)(1)(A), Green’s time to appeal was
extended only for 30 days from December 7, 2018—when they
served on Green the notice of the trial court’s ruling denying
18
Green’s new trial motion—until January 7, 2019.9 Because this
would shorten the time for Green to appeal from the judgment,
pursuant to rule 8.108(a), “the usual 60-day deadline” under
rule 8.104(a)(1)(A) applies, and Green’s appeal is untimely
because the last day to appeal the judgment was January 14,
2019—60 days from Dr. Suzuki and SMPA’s service of notice of
entry of judgment.
Green’s appeal is timely. Where a party serves notice of
entry of judgment, the notice of appeal must be filed on or before
“60 days after the party filing the notice of appeal serves or is
served by a party with a document entitled ‘Notice of Entry’ of
judgment or a filed-endorsed copy of the judgment, accompanied
by proof of service,” unless the superior court clerk had earlier
served a notice of entry of judgment. (Rules 8.104(a)(1)(A), (B).)
However, rule 8.108(b) provides, “If any party serves and files a
valid notice of intention to move for a new trial, the following
extensions of time apply: [¶] (1) If the motion for a new trial is
denied, the time to appeal from the judgment is extended for all
9 Dr. Suzuki and SMPA argued in their motion to dismiss
that Green’s time to appeal was not extended under rule 8.108(b)
by Green’s filing of his notice of intention to move for a new trial
because the notice was not valid. Although Green’s new trial
motion was denied by the court as untimely because the motion
and supporting memorandum were not filed within 10 days of
filing his notice of intention to move for a new trial, it is the filing
of a “valid notice of intention to move for a new trial” that
triggers the time extension under rule 8.108(b). There is no
authority for the proposition a timely filed notice of intention to
move for a new trial is not “valid” for purposes of rule 8.108(b)
because of procedural deficiencies in a subsequently filed new
trial motion.
19
parties until the earliest of: [¶] (A) 30 days after the superior
court clerk, or a party serves an order denying the motion or a
notice of entry of that order; [¶] (B) 30 days after denial of the
motion by operation of law; or [¶] (C) 180 days after entry of
judgment.”
Green’s argument that Dr. Suzuki and SMPA’s
December 7, 2018 “notice of ruling” was not a “notice of entry of
order” for purposes of rule 8.108(b)(1)(A) has merit. The
December 7 notice gave Green notice the trial court had denied
his new trial motion, but it did not notify Green of the entry of
the order or attach the order. (Carmel, Ltd. v. Tavoussi (2009)
175 Cal.App.4th 393, 399 [“serving a notice of ruling is not the
same as serving a copy of the order or a notice of entry of the
order, as contemplated by the rules governing the timeliness of
appeals”]; 20th Century Ins. Co. v. Superior Cour (1994)
28 Cal.App.4th 666, 672 [“It might seem that the difference
between a ‘notice of ruling’ and a ‘notice of entry’ is
hypertechnical. In another context it might be.”].) Because
Green filed a valid notice of intention to move for a new trial and
neither the superior court clerk nor Dr. Suzuki and SMPA served
Green with an order denying the new trial motion or a notice of
entry of such an order, Green had 180 days after entry of
judgment to appeal (rule 8.108(b)(1)(C)), which he timely did.
B. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc.
20
(2018) 20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.”’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600,
607.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Valdez v. Seidner-Miller, Inc., supra, 33 Cal.App.5th at
p. 607.) If the defendant satisfies this initial burden, the burden
shifts to the plaintiff to present evidence demonstrating there is a
triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850; Valdez, at p. 607.) We must
liberally construe the opposing party’s evidence and resolve any
doubts about the evidence in favor of that party. (Regents, supra,
4 Cal.5th at p. 618; Valdez, at p. 608.) But “[t]he plaintiff . . .
shall not rely upon the allegations or denials of its pleadings to
show . . . a triable issue of material fact exists but, instead, shall
set forth the specific facts showing that a triable issue of material
fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2); accord,
Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054
[“It is fundamental that to defeat summary judgment a plaintiff
must show ‘specific facts’ and cannot rely on allegations of the
21
complaint.”]; Regional Steel Corp. v. Liberty Surplus Ins. Corp.
(2014) 226 Cal.App.4th 1377, 1388.)
C. The Trial Court Properly Admitted the Declarations of
Drs. Linden and Suzuki in Ruling Dr. Suzuki and SMPA
Met Their Initial Burden on Summary Judgment
Green contends the trial court erred in considering the
declarations of Drs. Linden and Suzuki in finding Dr. Suzuki and
SMPA carried their initial burden to show Green could not
prevail on his causes of action. Green’s primary contention is
that the declarations have no evidentiary foundation because
Dr. Suzuki and SMPA submitted only excerpts of Green’s medical
records.10 Green cites no authority, nor is there, for the
proposition experts need to submit a patient’s medical records
beyond the portions on which the experts rely. Green’s reliance
on EHP Glendale, LLC v. County of Los Angeles (2011) 193
Cal.App.4th 262 is misplaced. There, a taxpayer challenging the
valuation of its property by the board of equalization presented
“only fragmentary excerpts of the administrative record” in
support of its motion for summary judgment. (Id. at p. 268.) The
Court of Appeal reversed the trial court’s grant of the taxpayer’s
motion, reasoning “the issue whether the Board’s findings are
10 Although the trial court did not rule on Green’s evidentiary
objections, they are preserved on appeal. (See Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 534 [“[I]f the trial court fails to rule
expressly on specific evidentiary objections, it is presumed that
the objections have been overruled, the trial court considered the
evidence in ruling on the merits of the summary judgment
motion, and the objections are preserved on appeal.”].)
22
supported by substantial evidence presupposes that the trial
court has before it all the evidence considered by the Board in
making its assessment.” (Id. at p. 272.) Green’s suit does not
involve an administrative record, nor did the experts fail to
present the documents on which they relied.
Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
also relied on by Green, does not support his position. In Serri,
the Court of Appeal affirmed the trial court’s ruling sustaining an
employer’s evidentiary objections to handwritten notes the
plaintiff submitted in opposition to the employer’s summary
judgment motion because the plaintiff provided no evidence to
support her claim the notes were authored by the employer’s vice-
president of human resources. (Id. at pp. 839, 855.) Here, Green
has failed to demonstrate the medical records submitted in
support of the declarations of Drs. Linden and Suzuki were not
properly authenticated. To the contrary, Dr. Suzuki and SMPA
submitted a verification from an agent of LEH confirming the
authenticity of Green’s records and a declaration from LEH’s
custodian of records attesting the medical records were prepared
by LEH’s personnel in the ordinary course of business.
Green also requests this court “review and rule upon” the
116 evidentiary objections he raised in the trial court, but he has
provided no analysis or citation to authority regarding his
evidentiary objections. Thus, he has forfeited these objections. 11
11 We acknowledge a self-represented litigant’s understanding
of the rules on appeal are, as a practical matter, more limited
than an experienced appellate attorney’s. Whenever possible, we
do not strictly apply technical rules of procedure in a manner
that deprives litigants of a hearing. But we are required to apply
the rules on appeal and substantive rules of law to a self-
23
(See Cohen v. Kabbalah Centre Internat., Inc. (2019)
35 Cal.App.5th 13, 21 [declining on appeal to review trial court’s
implied rulings on “scores of objections” where appellant failed to
describe why any were “‘critical in resolving the summary
judgment motion’”]; see also People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 363 [“If a party’s briefs do not provide legal
argument and citation to authority on each point raised, ‘“the
court may treat it as waived, and pass it without
consideration.”’”]; Roe v. McDonald’s Corp. (2005)
129 Cal.App.4th 1107, 1114 [“‘[a]n issue merely raised by a party
without any argument or authority is deemed to be without
foundation and requires no discussion’”].)
D. Dr. Suzuki and SMPA Carried Their Initial Burden, and
Green Failed To Raise a Triable Issue of Fact as to His
Causes of Action
1. Green’s cause of action for professional negligence
against Dr. Suzuki
“The elements of a claim for professional negligence are
‘“(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess
and exercise; (2) a breach of that duty; (3) a proximate causal
connection between the negligent conduct and the resulting
injury; and (4) actual loss or damage resulting from the
professional’s negligence.”’” (Paul v. Patton (2015)
235 Cal.App.4th 1088, 1095; accord, Powell v. Kleinman (2007)
151 Cal.App.4th 112, 122.) “Medical providers must exercise that
represented litigant’s claims on appeal just as we would to those
litigants who are represented by trained legal counsel.
(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
24
degree of skill, knowledge, and care ordinarily possessed and
exercised by members of their profession under similar
circumstances.” (Powell, at p. 122; accord, Barris v. County of
Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.) “‘In professional
malpractice cases, expert opinion testimony is required to prove
or disprove that the defendant performed in accordance with the
prevailing standard of care [citation], except in cases where the
negligence is obvious to laymen.’” (Ryan v. Real Estate of Pacific,
Inc. (2019) 32 Cal.App.5th 637, 644-645; accord, Webster v.
Claremont Yoga (2018) 26 Cal.App.5th 284, 288.)
Green contends Dr. Suzuki and SMPA did not carry their
initial burden on summary judgment because the evidence
proffered in support of their motion does not fully address the
allegations in his corrected second amended complaint. We are
not persuaded. Dr. Linden opined “to a reasonable medical
probability, that Dr. Suzuki met the standard of care for a
psychiatrist in all respects in the care and treatment provided to
Mr. Green” and Dr. Suzuki’s conduct did not cause Green’s
alleged injuries. Dr. Linden opined the changes to Green’s
medications made by LEH personnel were proper, and Dr. Suzuki
was entitled to rely on the decisions made by Dr. Zhuo regarding
Green’s physical health needs. Dr. Linden also opined the
monitored collection of a urine sample, the sharing of outdoor
recreation space between smoking and non-smoking patients, and
the confiscation of Green’s cell phone were all within the
standard of care for a patient in Green’s position. Further, it was
within the standard of care for Dr. Suzuki to rely on Green’s
medical records, which did not reflect a request by Green for a
low-purine diet. And Dr. Suzuki declared he was not responsible
for the alleged actions by LEH personnel in disclosing Green’s
25
private medical information (by the nurses talking in the
hallway).
Green points to the allegation in the operative complaint
that mental health worker Chris performed a strip search on
Green in front of another patient and with the door ajar.
However, Dr. Linden declared a skin integrity check (what Green
calls a strip search) was within the standard of care, and Dr.
Suzuki averred he was not responsible for the manner in which
LEH personnel (Chris) performed the check.
Green also asserts Dr. Suzuki and SMPA failed to address
the allegation in the operative complaint that Dr. Suzuki failed to
accurately record all necessary information on Green’s chart. But
Dr. Suzuki averred he followed “custom and practice to only chart
a patient’s concerns if they became a major issue.”
Green also contends in a conclusory manner that
Dr. Suzuki and SMPA did not address Green’s allegations in the
operative complaint that Dr. Suzuki violated “statutes and
regulations,” constituting negligence per se. But, as discussed,
Dr. Suzuki and SMPA carried their burden to show Dr. Suzuki's
conduct was within the standard of care. And in his opening
brief, Green has not identified any other conduct by Dr. Suzuki
that Green asserts violated a statute or regulation.
Further, even if Dr. Suzuki had violated a statute or
regulation, Dr. Linden presented his expert testimony that
Dr. Suzuki’s conduct did not cause Green’s injuries. “‘The
negligence per se doctrine, as codified in Evidence Code
section 669, creates a presumption of negligence if four elements
are established: “(1) the [party opposing a finding of negligence
per se] violated a statute, ordinance, or regulation of a public
entity; (2) the violation proximately caused death or injury to
26
person or property; (3) the death or injury resulted from an
occurrence of the nature of which the statute, ordinance, or
regulation was designed to prevent; and (4) the person suffering
the death or the injury to his person or property was one of the
class of persons for whose protection the statute, ordinance, or
regulation was adopted.”’” (Spriesterbach v. Holland (2013)
215 Cal.App.4th 255, 263-264; accord, Haytasingh v. City of
San Diego (2021) 66 Cal.App.5th 429, 468 [“Negligence per se is
an evidentiary doctrine codified at Evidence Code section 669
that provides for the application of a rebuttable presumption that
a breach of the legal duty of due care has occurred where there
has been a violation of a statute, ordinance or regulation.”].)
Thus, Dr. Linden’s testimony that Dr. Suzuki’s conduct did
not cause Green’s injuries is a sufficient showing to shift the
burden to Green to raise a triable issue of fact. In response,
Green has not shown how the asserted violation proximately
caused injury to him, and he cannot rely on the allegations in his
pleadings to show a triable issue of fact exists. (Code Civ. Proc.,
§ 437c, subd. (p)(2); see Roman v. BRE Properties, Inc., supra,237 Cal.App.4th at p. 1054.)
Finally, Green argues the opinions of Dr. Fast contained in
his two-page letter declaration filed as an attachment to Green’s
July 26, 2018 ex parte application to continue the summary
judgment motion create a triable issue of fact. But “[m]aterial
not presented in opposition to the summary judgment motion
itself is not properly considered by the court in ruling on the
motion.” (Roman v. BRE Properties, Inc., supra, 237 Cal.App.4th
at p. 1054 [information in plaintiffs’ fee waiver request and
requests for accommodation in the trial court did not create
triable issue on summary judgment].) Moreover, although
27
Dr. Fast expressed his opinion in the letter that the care provided
by Dr. Suzuki to Green “fell below the usual inpatient psychiatric
standard of care,” his declaration lacks foundation because he
acknowledged he had not reviewed Green’s medical records.12
The letter therefore does not create a triable issue of fact as to
Green’s claim for professional negligence.
2. Green’s cause of action for intentional infliction of
emotional distress against Dr. Suzuki
“A cause of action for intentional infliction of emotional
distress exists when there is ‘“‘“(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.”’”’ [Citations.] A
defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’”’ [Citation.] And the defendant’s conduct must be
‘“‘intended to inflict injury or engaged in with the realization that
injury will result.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050-1051; accord, Brown v. USA Taekwondo (2019)
40 Cal.App.5th 1077, 1109, aff’d (2021) 11 Cal.5th 204.)
12 We reject Green’s argument Dr. Suzuki and SMPA forfeited
any evidentiary challenge to Dr. Fast’s declaration. In their reply
in support of their summary judgment motion, Dr. Suzuki and
SMPA asserted the letter declaration of Dr. Fast was
inadmissible and inadequate to create a triable issue of fact on
Green’s claims.
28
Dr. Suzuki and SMPA carried their burden to show Green
could not prevail on his cause of action for intentional infliction of
emotional distress. As discussed, Dr. Linden opined that
Dr. Suzuki’s care and psychiatric treatment of Green to a
reasonable medical probability was within the standard of care.
And Dr. Suzuki averred in his declaration that he did not intend
to cause Green physical or emotional harm, but rather, sought to
provide him with appropriate psychiatric care. Green disputes
Dr. Suzuki’s statement that the care he provided to Green was
not intended to harm Green, but Green failed to present any
evidence disputing this in opposition to the summary judgment
motion. On appeal, Green simply asserts he “certainly disputes
that statement.” And, as discussed, Green cannot rely on the
allegations of his operative complaint to create a triable issue.
Finally, Green has not presented any evidence to rebut the
opinion of Dr. Linden in his declaration that Dr. Suzuki’s conduct
did not cause Green’s injuries. Thus, Green failed to raise a
triable issue of fact on his cause of action for intentional infliction
of emotional distress against Dr. Suzuki.
3. Green’s cause of action for dependent adult abuse and
neglect against Dr. Suzuki
To establish a claim for neglect of a dependent adult, “a
plaintiff ‘must allege (and ultimately prove by clear and
convincing evidence) facts establishing that the defendant (1) had
responsibility for meeting the basic needs of the elder or
dependent adult, such as nutrition, hydration, hygiene or medical
care [citations]; (2) knew of conditions that made the elder or
dependent adult unable to provide for his or her own basic needs
[citations]; and (3) denied or withheld goods or services necessary
29
to meet the elder or dependent adult’s basic needs, either with
knowledge that injury was substantially certain to befall the
elder or dependent adult (if the plaintiff alleges oppression, fraud
or malice) or with conscious disregard of the high probability of
such injury (if the plaintiff alleges recklessness) [citations]. The
plaintiff must also allege (and ultimately prove by clear and
convincing evidence) that the neglect caused the elder or
dependent adult to suffer physical harm, pain or mental
suffering.’” (Dougherty v. Roseville Heritage Partners (2020)
47 Cal.App.5th 93, 105, fn. 1; accord, Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.) “As
used in the Act, neglect refers not to the substandard
performance of medical services but, rather, to the ‘failure of
those responsible for attending to the basic needs and comforts of
elderly or dependent adults, regardless of their professional
standing, to carry out their custodial obligations.’ [Citation.]
Thus, the statutory definition of ‘neglect’ speaks not of the
undertaking of medical services, but of the failure to provide
medical care. [Citation.] Notably, the other forms of abuse, as
defined in the Act—physical abuse and fiduciary abuse
(§ 15657)—are forms of intentional wrongdoing also distinct from
‘professional negligence.’” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783; accord, Delaney v. Baker (1999)
20 Cal.4th 23, 34.)
Dr. Suzuki and SMPA carried their burden to show Green
could not prevail on his claim for dependent adult abuse and
neglect. As discussed, Drs. Linden and Suzuki provided
declarations showing that Dr. Suzuki provided psychiatric care
for Green within the standard of care. With respect to the
allegations in the operative complaint, as stated by Dr. Linden,
30
Green was given access to a phone at LEH free of charge, which
Green used multiple times during his treatment. Dr. Suzuki
averred patients are free to shower at any time. With regard to
the alleged failure to provide Green with his prescribed
medications, Drs. Linden and Suzuki opined it was appropriate
for Dr. Suzuki to rely on Dr. Zhuo’s treatment of Green’s physical
health needs. As to the alleged failure to provide Green with a
low-purine diet, Dr. Linden found there was no record of Green
requesting such a diet, and Dr. Suzuki declared the diet would
have been provided if requested. And, as noted, Dr. Linden
opined that Dr. Suzuki’s conduct did not cause Green’s injuries.
Green did not present any evidence to rebut this showing, instead
relying on the allegations in his operative complaint. On appeal,
Green only argues that Dr. Suzuki’s own declaration was not
sufficient to meet his burden. Thus, Green failed to raise a
triable issue of fact on his cause of action for dependent adult
abuse and neglect against Dr. Suzuki.
4. Green failed to raise a triable issue of fact as to his
causes of action against SMPA
“There can be no vicarious liability in a medical
malpractice action without the underlying liability of the medical
practitioner.” (Lathrop v. HealthCare Partners Medical
Group (2004) 114 Cal.App.4th 1412, 1426; accord, Shaw v.
Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347.) Because
Green failed to raise a triable of issue of fact as to his causes of
31
action against Dr. Suzuki, there is no basis for liability as to
SMPA.13
E. The Trial Court Did Not Abuse Its Discretion in Denying
Green Leave To File a Third Amended Complaint
1. Proceedings below
On July 6, 2018 Green filed a motion for leave to file a third
amended complaint, seeking to allege additional causes of action
against Dr. Suzuki and SMPA for violations of Civil Code
sections 51 (Unruh Civil Rights Act) and 52.1 (Tom Bane Civil
Rights Act).14 Green set the hearing for July 27. Dr. Suzuki and
SMPA filed an objection to Green’s motion, arguing Green had
not provided sufficient statutory notice because Green’s motion
was not served at least 16 court days before the hearing (Code
Civ. Proc., § 1005, subd. (b)), plus five calendar days for mailing
13 We reject Green’s assertion the trial court erred in not
granting the oral request for a continuance of the summary
judgment motion made by Green’s attorney at the October 12,
2018 hearing. Green has forfeited this contention by presenting
no legal argument or authority for his argument. (People v.
Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 363; Roe v.
McDonald’s Corp., supra, 129 Cal.App.4th at p. 1114.) Moreover,
even if Green had not forfeited this argument, the trial court did
not abuse its discretion in denying Green’s oral request for a fifth
continuance of the summary judgment motion, where the court
had provided multiple continuances for the same purpose (to
allow Green to conduct discovery and submit Dr. Fast’s
completed declaration and other evidence) and Green made no
good faith showing by affidavit that a continuance was necessary.
(See Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty
Co. (2009) 170 Cal.App.4th 554, 576.)
14 Green also sought leave to amend to assert a cause of
action for assault against other defendants.
32
(id., § 1013, subd. (a)). On July 27 the court denied Green’s
motion based on untimely filing and service.
2. The trial court did not abuse its discretion
“It is well established that leave to amend a complaint is
entrusted to the sound discretion of the trial court, and that the
exercise of that discretion will not be disturbed on appeal absent
a clear showing of abuse of discretion.” (McMillin v. Eare (2021)
70 Cal.App.5th 893, 909; accord, Graphic Arts Mutual Ins. Co. v.
Time Travel Internat., Inc. (2005) 126 Cal.App.4th 405, 410 [“We
apply the abuse of discretion standard when reviewing the trial
court’s denial of leave to amend.”].) The appellant bears the
burden of proving the trial court abused its discretion in denying
leave to amend. (Graphic Arts, at p. 410.)
Green has not shown the trial court abused its discretion in
denying his procedurally defective motion for leave to file a third
amended complaint. Here too, Green has failed to present legal
argument or to cite to authority to explain how the trial court
abused its discretion, thus forfeiting the contention. (See
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277
[“‘[T]o demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal analysis and
citation to the record.’”]; Multani v. Witkin & Neal (2013)
215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by
failing to “present meaningful legal analysis supported by
citations to authority and citations to facts in the record that
support the claim of error”].)
Even if Green had not forfeited this argument, the trial
court did not abuse its discretion. Green’s motion for leave to file
a third amended complaint failed to comply with Code of Civil
33
Procedure section 1005, subdivision (b), which provides, “Unless
otherwise ordered or specifically provided by law, all moving and
supporting papers shall be served and filed at least 16 court days
before the hearing.” Green filed his motion on July 6, 2018, only
15 court days before the July 27 hearing. Further, Green served
his motion by mail on July 5, 2018, which was 16 court days
before the hearing, without complying with Code of Civil
Procedure section 1013, subdivision (a), which provides in case of
service by mail that “any period of notice . . . shall be extended
five calendar days.” Thus, the trial court did not abuse its
discretion in denying Green’s motion based on untimely filing
and service.15
15 Green also contends the trial court erred in denying his
February 13, 2019 motion to vacate the court’s denial of his
motion for leave to file a third amended complaint, but he has
forfeited this claim for failing to provide a complete appellate
record containing the trial court’s ruling on the motion. (Mack v.
All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940
[“‘“Failure to provide an adequate record on an issue requires
that the issue be resolved against appellant.”’”]; accord, Hotels
Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th
336, 348 [“By failing to provide an adequate record, appellant
cannot meet his burden to show error and we must resolve any
challenge to the order against him.”].)
34
DISPOSITION
We affirm the judgment. Respondents are entitled to
recover their costs on appeal.
FEUER, J.
We concur:
SEGAL, Acting P. J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
35