Filed 8/6/19




                      CERTIFIED FOR PARTIAL PUBLICATION*


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIFTH APPELLATE DISTRICT

GREGORY SMITH,
                                                                      F075882
      Plaintiff and Appellant,
                                                          (Super. Ct. No. 13CECG03237)
    v.

I. OGBUEHI et al.,                                                   OPINION
      Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Fresno County. Donald S.
Black, Judge.
         Gregory Smith, in pro. per., for Plaintiff and Appellant.
         Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney
General, Neah Huynh and Allison M. Low, Deputy Attorneys General, for Defendants
and Respondents.
                                           -ooOoo-
         Plaintiff Gregory Smith is an indigent, self-represented prison inmate pursuing
medical malpractice claims against a doctor and a nurse practitioner employed by the
Pleasant Valley State Prison (Pleasant Valley). He filed a motion for the appointment of
counsel, arguing the trial court should consider (1) the factual complexity of the issues


*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II. of the Discussion.
relating to pain medication, dosage and his spinal condition; (2) his limited ability to
investigate the facts, obtain discovery and get expert witnesses; (3) the legal complexity
of the case; and (4) his showing that, on their face, his claims had merit. The trial court
noted the right of criminal defendants to appointed counsel, cited the statute governing
the appointment of public defenders, but stated it was without authority to appoint an
attorney for a plaintiff in a civil case, and denied the motion. Subsequently, the trial
court granted defendants’ motion for summary judgment because Smith, as he predicted,
did not obtain a medical expert’s declaration contradicting the opinion of defendants’
expert that the care provided Smith met the applicable standard of care.
       The California Constitution and Penal Code section 2601, subdivision (d) provide
indigent prisoners with the right of meaningful access to the courts to prosecute civil
actions. One of the discretionary measures available to protect the right of access to the
courts is the appointment of counsel. Consequently, the trial court had the discretionary
authority to appoint counsel. The court’s statement that it was without the authority to
appoint counsel did not recognize the existence and scope of its discretionary authority.
       The exercise of a trial court’s discretion is guided by a three-step inquiry
established in published appellate decisions. (Apollo v. Gyaami (2008) 167 Cal.App.4th
1468, 1485–1487 (Apollo); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792
(Wantuch).) First, the trial court determines whether the prisoner is indigent. Second, the
court determines whether the lawsuit involves a bona fide threat to the inmate’s personal
or property interests. If both conditions are satisfied, the trial court must consider the
measures available to protect appellant’s right of meaningful access to the courts,
including the appointment of counsel. Where the indigent prisoner’s civil action is bona
fide and his or her access to the court is being impeded, a trial court must provide a
remedy; it may not choose to do nothing.
       Here, the trial court’s denial of the motion to appoint counsel was not based on an
informed exercise of its discretion. Consequently, the appropriate remedy is to remand

                                              2.
the matter to the trial court for an exercise of its discretionary authority within the
framework of the three-step inquiry.
       We publish a portion of this decision because it resolves issues not reached in
Apollo or Wantuch. First, the discretionary appointment of an expert pursuant to
Evidence Code section 730 is among the measures available to trial courts to ensure
indigent prisoner litigants are afforded meaningful access to the courts. Second, trial
courts are responsible for recognizing their discretionary authority to appoint counsel for
indigent civil litigants who request the appointment of counsel, even when the indigent
litigant does not cite cases such as Apollo and Wantuch and does not refer to the right of
access to the courts as the basis for that discretionary authority. Third, an indigent civil
litigant may argue on appeal that the right of meaningful access to the courts provides a
basis for appointing counsel despite not raising that specific argument in the trial court.
       We therefore reverse the judgment and remand for further proceedings.
                                           FACTS
Parties
       Smith was born in 1956. His present incarceration began in 2004 and he is serving
a sentence of 39 years to life, with eligibility for parole. The present litigation arises
from the medical care Smith received at Pleasant Valley, where he arrived in August
2011, after being transferred from the Richard J. Donovan Correctional Facility in San
Diego County (Donovan). Smith remained at Pleasant Valley until December 2013,
when he was transferred to Folsom State Prison (Folsom).
       The defendants named in Smith’s pleading were P. Brazelton, Warden of Pleasant
Valley; Dr. U. Baniga; Nurse Practitioner I. Ogbuehi; J. Clark Kelso; Dr. A. Duenas; and
L. Zamora. Only Dr. Baniga, Ogbuehi, and Warden Brazelton were served with Smith’s
amended complaint.




                                              3.
Smith’s Medical Conditions
       Prior to Smith’s arrival at Pleasant Valley, he was injured in two separate cellmate
assaults. After the first cellmate assault, medical staff at Donovan coordinated two
surgeries on Smith’s right thumb and wrist in 2008 and 2009. Donovan medical staff
also prescribed gabapentin for pain.
       In June 2010, Smith experienced a sudden onset of right knee pain. Donovan
medical staff identified a lateral meniscus tear and preliminarily evaluated Smith for
surgery.
       In September 2010, the second cellmate assault occurred, injuring Smith’s left
shoulder. Donovan medical staff and Smith prioritized treatment of the injured shoulder
over the treatment of Smith’s knee. In September 2010, the first surgery on Smith’s left
shoulder was conducted. In February 2011, Donovan medical staff coordinated a second
surgery on Smith’s shoulder to remove the displaced anchor. Donovan medical staff also
prescribed morphine for pain.
       While treating Smith’s shoulder, a CT scan revealed an old compression fracture
of Smith’s L3 vertebrae. Smith was given a back brace, but no significant treatment was
provided for his back.
       To summarize, while at Donovan, Smith experienced medical problems with his
right hand, right knee, left shoulder, and his spine. The symptoms from these problems
included pain. This lawsuit addresses the medical care Smith received at Pleasant Valley
after leaving Donovan in August 2011. Details about that medical care are set forth in
the unpublished portion of this opinion addressing defendants’ motion for summary
judgment.
                                       PROCEEDINGS
       Smith has represented himself throughout this proceeding, which has included
exhausting administrative remedies, filing a claim under the Government Claims Act
(Gov. Code, § 810 et seq.), and pursuing this lawsuit. The litigation began in October

                                            4.
2013 when Smith filed a civil complaint and an application for waiver of court fees. In
April 2014, after various motions had been filed and some withdrawn, Smith filed an
amended complaint asserting medical malpractice claims. His amended complaint is the
operative pleading for purposes of this appeal.
       The amended complaint sets forth headings for three causes of action, all of which
included the description “(Negligent or Wrongful Act or Omission).” Additional
descriptions of “(Defendant’s owe Plaintiff a legal duty of care)”; “(Defendant’s Breach
of Duty)”; and “(Proximately Cause Pain and Suffering)” were included in Smith’s
headings for the first, second, and third causes of action, respectively.
       In broad terms, Smith alleged defendants breached their legal duty to provide
reasonable and competent medical care by failing to give necessary medication;
prescribing inappropriate medication; delaying examination and treatment; and failing to
provide access to a specialist that his particular condition required. He also alleged the
“failure to summon immediate medical care … is serious enough [to] amount to the
wanton and unnecessary infliction of pain and suffering.” In more specific allegations,
Smith asserts his shoulder cannot be repaired due to delays in treatment; the morphine he
was taking for pain was inappropriately lowered and then withdrawn completely; the
gabapentin he was taking was inappropriately withdrawn; and Dr. Baniga refused his
request to be removed from Ogbuehi’s care and assigned another nurse practitioner. The
pain being treated related to Smith’s shoulder injury, a compression fracture of his L3
vertebrae, and a tear of the lateral meniscus in his right knee.
       In June 2014, the three defendants served with the amended complaint filed their
answer. Subsequently, Warden Brazelton was dismissed with prejudice pursuant to a
written request for dismissal signed by Smith and defense counsel. Consequently, this
lawsuit has been narrowed to the claims against Dr. Baniga and Ogbuehi.




                                              5.
Motion for Appointment of Counsel
        In April 2015, Smith filed a motion for appointment of counsel. The motion
asserted (1) Smith was unable to afford counsel; (2) the issues involved in the case were
complex and would require medical expert testimony; (3) Smith had little or no access to
drug manufacturers and their data, specialists of the spine, or the Food and Drug
Administration; and (4) Smith had limited knowledge of the law. Smith’s memorandum
of points and authorities cited federal cases and discussed factors addressed in those
opinions—namely, factual complexity, plaintiff’s ability to investigate, plaintiff’s ability
to present his claim, legal complexity, and the merits of the case.
        In May 2015, the trial court issued an order (1) stating it had received Smith’s ex
parte motion for appointment of counsel, (2) mentioning the right to appointed counsel in
criminal cases and lack of authority to appoint counsel for a plaintiff in a civil
proceeding, and (3) denying the request. The court’s rationale is described in part I.B.2.,
post.
Motion for Summary Judgment
        In December 2016, defendants filed a motion for summary judgment asserting
“the undisputed material facts establish that Nurse Practitioner Ogbuehi and Dr. Baniga’s
provision of medical services to [Smith] did not fall below the standard of care.” The
separate statement of undisputed material facts was organized into 10 sections that
addressed plaintiff’s (1) shoulder condition, (2) back condition, (3) knee condition, (4)
morphine prescription, (5) gabapentin prescription, (6) oxcarbazepine prescription, (7)
amitriptyline claims, (8) request for a new provider, (9) causal link, and (10) the lawsuit.
The motion was supported by declarations of a medical expert and a deputy attorney
general. Ogbuehi and Dr. Baniga did not submit declarations to support their motion for
summary judgment.




                                              6.
Dr. Duenas’s Declaration
       Defendant’s medical expert, Dr. A. Duenas received a Doctor of Medicine degree
from the Universidad Autonoma de Guadalajara School of Medicine in 1979. She is
certified in internal medicine by the American Board of Internal Medicine. Dr. Duenas
began working for the California Department of Corrections and Rehabilitation in 2008
and remained in its employ through the date of her declaration. She was serving as the
chief physician and surgeon at the Pleasant Valley State Prison when Smith arrived and
continued in that role until February 2012, when she transferred to another institution.1
       Dr. Duenas’s opinion on the adequacy of medical care provided to Smith by Dr.
Baniga and Ogbuehi was based on (1) her review of medical records of the care provided
to Smith during his incarceration from 2004 through the date of her declaration; (2) her
direct participation in Smith’s case while chairing the Clinical Case Management Review
Committee, which evaluated Smith on January 11, 2012; (3) the administrative grievance
filed by Smith relating to care given by Ogbuehi, which Dr. Duenas granted in part at the
second level of review and initiated a confidential staff inquiry;2 (4) her review of
nonmedical records provided by defense counsel and included in the papers supporting
the motion for summary judgment; and (5) her professional experience, training, and
knowledge. Dr. Duenas’s declaration set forth her “professional opinion that Ogbuehi
and Dr. Baniga’s medical practices met applicable standards of care. Further, it is my
professional opinion, to a degree of medical probability, that no action or inaction by
Nurse Practitioner Ogbuehi or Dr. Baniga caused plaintiffs claimed harm.” These

1     Dr. Duenas, a named but unserved defendant, was dismissed from the lawsuit
without prejudice in 2015. Thus, her opinion addresses the conduct of her subordinates.
2       Inmate grievances are processed in accordance with regulations set forth in article
8 of title 15 of the California Code of Regulations. The three levels of administrative
review applied to the grievances are discussed by this court in Villery v. Department of
Corrections & Rehabilitation (2016) 246 Cal.App.4th 407 and Menefield v. Foreman
(2014) 231 Cal.App.4th 211.


                                             7.
opinions were supported by the details set forth and analyzed in paragraphs 14 through
93, inclusive, of her declaration, which covered approximately 25 pages.
       Here, we set forth some of Dr. Duenas’s views about the treatment of Smith’s left
shoulder and Smith’s allegations relating to that treatment. Dr. Duenas states Smith is
wrong in claiming that the delays by Dr. Baniga or Ogbuehi delayed the surgery and
caused his supraspinatus tendon tear to be unrepairable. Dr. Duenas states: “The date
upon which the tendon could have been accessible in surgery before retraction is not
known.” She notes Dr. Y. N. Paik of the Pacific Orthopedic Medical Group did not call
for immediate surgery after his February 2012 consultation with Smith or his May 2012
evaluation and then states the following opinion: “Plaintiff cannot establish that surgery
would have been successful prior to August 1, 2012—in fact, plaintiff cannot establish
that surgery would have been successful prior to his initial evaluation by Ogbuehi in
October 2011.”
Opposition
       On April 27, 2017, Smith filed a response to defendants’ separate statement of
undisputed material facts, which included exhibits totaling over 120 pages.3 The proof of
service attached to this response refers to a declaration of Smith in opposition to
defendants’ motion, but such a declaration does not appear in the appellate record.
       Smith responded “undisputed” to many of the 130 numbered paragraphs of
material facts asserted by defendants. However, Smith also responded “disputed” to
many of the assertions of fact. For example, defendants’ separate statement described an
October 25, 2011, meeting between Smith and Ogbuehi and a January 11, 2012, meeting


3       The tentative ruling on the motion for summary judgment was issued on April 11,
2017, so the trial court did not have the benefit of Smith’s response when it made its
tentative decision, which was later adopted on April 27, 2017, following an unreported
hearing held that day. The record does not show whether the trial court had actually seen
Smith’s response before or during the hearing.


                                             8.
between Smith and the Clinical Case Management Review Committee, stating the main
source of Smith’s pain was his shoulder. Smith disputes these statements and asserts he
was suffering pain in his left shoulder, lower back pain and right knee pain, but the left
shoulder pain was the only complaint with which the nurse and committee were
concerned.
       Another example of a factual dispute relates to paragraph 37 of defendants’
separate statement, which described excerpts of Smith’s medical records relating to his
back condition. In his response, Smith disputed “the accuracy of these medical records.”
The accuracy of Smith’s medical records also was addressed in paragraph 124 of
defendants’ separate statement, which asserted Smith was asked during his deposition if
the medical records he reviewed accurately reflected the medical treatment he received,4
and he answered “yes.”
       In the section of defendants’ separate statement addressing Smith’s back
condition, paragraphs 41, 45, 47, 48, 50, 51, 52, 54 and 56 describe nine meetings
between Smith with Ogbuehi between June 2012 and December 2013. Those paragraphs
assert the medical records reflect Ogbuehi evaluated Smith and reported “a negative
straight leg raise test.” Smith disputes the completeness and correctness of the leg raise
test performed, stating he was never on his back for the test and Ogbuehi never raised his
leg herself. Smith asserts that, instead, he was asked to raise one leg at a time while
seated in a chair. Smith notes there was no documentation on how the test was
performed and states, “same incorrect procedures month after month, same incorrect
results.” Smith supported his claim that the test was performed incorrectly by submitting




4      Defendants’ separate statement did not address whether Ogbuehi’s notes
accurately reflected her conversations with Smith.


                                             9.
a printout of an article on the straight-leg test for evaluating low back pain from
WebMD.5
       In the part of defendants’ separate statement addressing Smith’s morphine
prescription, defendants refer to medical records from a January 9, 2013, meeting
between Smith and Ogbuehi for a primary care evaluation and state the records reflect
Ogbuehi noted a “steady gait.” Smith’s response asserts this statement by Ogbuehi was
false and misleading because a steady gait was never proven and she “never walk[ed]
with plaintiff to see how his walk is.” Smith supports his assertion by referring to
medical records describing him as walking into a “room with a significant gait limping,
using his cane.”
       Smith’s response to defendants’ separate statement disputes other factual
assertions made by defendants. Those disputes are not described here as the foregoing
examples are sufficient for purposes of this appeal.
Trial Court’s Decision
       On April 27, 2017, a hearing was held on the motion for summary judgment, the
same day Smith’s response to defendants’ separate statement was filed. Smith and
defense counsel appeared using CourtCall. The court granted the motion, adopting its
tentative ruling as its order, previously issued on April 11, 2017. The ruling stated
defendant had met their burden by showing that nothing Ogbuehi or Baniga did caused
Smith’s harm. The court referred to Dr. Duenas’s opinion that defendants’ medical
practices met the applicable standards of care and stated the medical records showed that
Dr. Baniga did not refuse Smith’s request to be assigned to a different medical provider.


5      Smith’s response to defendants’ separate statement was filed on April 27, 2017,
well after Dr. Duenas executed her declaration on December 13, 2016. Dr. Duenas did
not anticipate Smith’s claim that the straight-leg test was performed incorrectly and,
therefore, did not address (1) how to perform a straight-leg test in accordance with the
applicable standard of care or (2) the manner in which Ogbuehi performed the test.


                                             10.
       In May 2017, the trial court entered a judgment in favor of Ogbuehi and Dr.
Baniga in the amount of $1,330.13 and decreed that Smith would take nothing. Smith
filed a timely appeal.
                                       DISCUSSION
I.     APPOINTMENT OF COUNSEL
       Appellant’s opening brief included a heading asserting the denial of appointment
of counsel for medical expert was an abuse of discretion. Because his request of the trial
court was for appointment of counsel, not for the appointment of an expert, our review
focuses on the issues relating to the appointment of counsel. Under California law, the
appointment of counsel for an indigent prisoner pursuing a civil action is an aspect of the
right of access to the courts. (Apollo, supra, 167 Cal.App.4th at p. 1484, citing
Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 200–201 (Yarbrough).) Accordingly,
an overview of the principles that define the right to access to the courts is provided.
       A.     Overview of Right to Access to the Courts
              1.      General Principles
       Access to the courts is “a right guaranteed to all persons by the federal and state
Constitutions.” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821.)6
The constitutional right of access to the court extends to prisoners. (In re Jesusa V.
(2004) 32 Cal.4th 588, 601 [“there is no dispute that prisoners have a constitutional right
of access to the courts”].) In addition to these constitutional foundations, California state
prisoners have the statutory right “[t]o initiate civil actions” as plaintiffs. (Pen. Code, §
2601, subd. (d).) This statute has been interpreted “to include within its scope the right to

6      The United States Supreme Court has “grounded the right of access to court in the
Article IV Privileges and Immunities Clause [citations], the First Amendment Petition
Clause [citations], the Fifth Amendment Due Process Clause [citations], and the
Fourteenth Amendment Equal Protection [citation] and Due Process Clauses [citations].”
(Christopher v. Harbury (2002) 536 U.S. 403, 415, fn. 12; cf. Cal. Const., art. I, § 3,
subd. (a) [“people have the right to … petition government for redress of grievances”].)


                                              11.
be afforded meaningful access to the courts to prosecute those civil actions.” (Apollo,
supra, 167 Cal.App.4th at p. 1483, italics added.) Under this statute, “a prisoner may not
be deprived, by his or her inmate status, of meaningful access to the civil courts if the
prisoner is both indigent and a party to a bona fide civil action threatening his or her
personal or property interests.” (Ibid., citing Wantuch, supra, 32 Cal.App.4th at p. 792.)
       The decisions in Apollo and Wantuch are significant because they involved
indigent prisoners who were plaintiffs in civil actions. Earlier decisions of the California
Supreme Court addressing the right of access to the courts dealt with indigent prisoners
who were defendants in civil actions. (See Yarbrough, supra, 39 Cal.3d 197; Payne v.
Superior Court (1976) 17 Cal.3d 908 (Payne).)
       In Wantuch, a self-represented inmate sued his former criminal defense attorney
for malpractice and other causes of action. (Wantuch, supra, 32 Cal.App.4th at pp. 789–
790.) When the inmate failed to appear at a status conference, the trial court denied the
inmate’s motion for appointed counsel, struck his pleadings, and entered judgment
against him. (Id. at p. 790.) The Second District determined the trial court abused its
discretion in striking the pleadings and entering judgment against the inmate. (Ibid.) The
court reversed the judgment and remanded for further consideration of the inmate’s right
of access to the courts. (Wantuch, supra, 32 Cal.App.4th at pp. 790, 795–796.)
       In Apollo, a self-represented prisoner brought a civil action against the prison food
administrator and two medical staff members for damages resulting from defendants’
refusal to provide a medically prescribed special diet for his chronic diverticulitis of the
colon. (Apollo, supra, 167 Cal.App.4th at p. 1471.) Two defendants obtained a dismissal
for lack of proper service and the other prevailed on a motion for summary judgment.
(Ibid.) On appeal, the prisoner challenged the dismissals and the entry of summary
judgment and, as an initial matter, argued he had been denied his right of meaningful
access to the courts based on his status as an indigent, unrepresented prisoner litigant.
(Id. at p. 1482.) The First District regarded the prisoner’s access to the courts as the

                                             12.
crucial issue in the case, reversed the judgment, and remanded for further proceedings on
the question of his right of meaningful access. (Id. at pp. 1482, 1488.)
       In Apollo, the First District’s analysis of the potential deprivation of meaningful
access to the courts followed the reasoning set forth in Wantuch. The court stated it
“must determine whether, considering appellant’s status as an unrepresented prisoner-
litigant, the trial court exercised its discretion in a manner protective of his statutory right
to meaningful access to the courts to prosecute bona fide civil claims.” (Apollo, supra,
167 Cal.App.4th at p. 1484.) The court reviewed the record presented and determined the
trial court gave little, if any, consideration to the appellant’s right of meaningful access to
the courts. (Id. at p. 1485.) Consequently, the First District remanded for further
proceedings and directed the trial court to (1) “first determine whether appellant is
indigent”; (2) next determine whether the lawsuit involved a bona fide threat to his
personal or property interests, and (3) consider what measures were available to protect
appellant’s right of meaningful access to the courts if the first two conditions (i.e.,
indigency & bona fide claim) existed. (Id. at pp. 1485–1486.) This three-step inquiry
was based on the remand instructions given in Wantuch. (Wantuch, supra, 32
Cal.App.4th at p. 796.)
       A nonexclusive list of measures available to trial courts to ensure indigent prisoner
litigants are afforded meaningful access to the courts (including plaintiffs in bona fide
civil actions) are set forth in both Apollo and Wantuch. Those measures included (1)
deferral of the action until the prisoner is released; (2) appointment of counsel for the
prisoner; (3) transfer of the prisoner to court to attend hearings or the trial; (4) utilization
of depositions in lieu of personal appearances; (5) holding of trial in prison; (6)
conducting status and settlement conferences, hearings on motions and other pretrial
proceedings by telephone; (7) propounding of written discovery; and (8) use of closed
circuit television or other modern electronic media. (Apollo, supra, 167 Cal.App.4th at p.
1483, quoting Wantuch, supra, 32 Cal.App.4th at pp. 792–793.) This list also allows for

                                              13.
the “ ‘implementation of other innovative, imaginative procedures.’ ”7 (Apollo, supra, at
p. 1483.) In deciding the appropriate measure or measures to assure access, the relevant
circumstances include, without limitation, the practicality and effectiveness of the various
measures available to protect the right of access to the courts. (See Wantuch, supra, 32
Cal.App.4th at p. 793.)
       After the briefing in this appeal was completed, the California Supreme Court
decided a case involving the right of access to the courts of an indigent plaintiff prisoner
pursuing medical malpractice claims. (Jameson v. Desta (2018) 5 Cal.5th 594
(Jameson).) In that case, the right to access to meaningful appellate review of the trial
court’s decision was affected by the absence of a court reporter at the trial court
proceedings and the resulting lack of a verbatim record of those proceedings. (Id. at p.
608.) As background, the Supreme Court described various ways it and the Courts of
Appeal had protected the ability of indigent civil litigants to obtain meaningful access to
the courts, including “Payne[, supra,] 17 Cal.3d 908 [132 Cal.Rptr. 405, 553 P.2d 565]
… [right of indigent prisoner who is a defendant in a civil case to be provided meaningful
access to judicial process, including representation by counsel if necessary];
Yarbrough[, supra,] 39 Cal.3d 197 [216 Cal.Rptr. 425, 702 P.2d 583] [explaining trial
court’s responsibilities under Payne].” (Jameson, supra, 5 Cal.5th at p. 605.) Based on
our Supreme Court’s citation of its prior decisions involving the appointment of counsel,
we conclude those decisions remain good law. Although Apollo and Wantuch were not
cited in Jameson, we conclude the analysis and the result reached in Jameson supports
the conclusion that the Supreme Court did not overrule those cases by implication.

7       We have located, and the parties have cited, no published decision explicitly
including or excluding the discretionary appointment of an expert pursuant to Evidence
Code section 730 from the measures available to protect the right of access to the courts.
Here, we explicitly decide this apparently novel question and conclude the discretionary
appointment of an expert pursuant to Evidence Code section 730 is among the measures a
trial court may consider.


                                             14.
Therefore, we conclude Apollo and Wantuch remain good law on the subject of an
indigent prisoner’s right to meaningful access to the courts.
              2.     Appointment of Counsel
       California decisions identify the appointment of counsel as one of the measures
available to a trial court to assure an indigent prisoner is provided meaningful access to
the courts. However, neither the California Constitution nor Penal Code section 2601,
subdivision (d) have been interpreted to require the appointment of counsel for indigent
plaintiff litigants as a matter of right. (Apollo, supra, 167 Cal.App.4th at p. 1483 [while
appointment of counsel for a prisoner is a measure for affording meaningful access to the
courts, the right does not necessarily mandate a particular measure such as the
appointment of counsel].)8 Instead, the choice of measures to safeguard a prisoner’s
right, as a plaintiff or defendant, to meaningful access to the courts to prosecute a civil
action is committed to the trial court’s discretion. (Apollo, supra, at pp. 1483–1484; see
3 Mushlin, Rights of Prisoners (5th ed. 2017) § 12:24, p. 221 [in almost all cases where a
self-represented inmate requests counsel, “the issue will be whether the court should
exercise its discretion to appoint counsel”].) The scope of that discretionary authority is
defined in part by the following:

       “[A] trial court does not have discretion to choose no remedy in cases
       where the prisoner’s civil action is bona fide and his or her access to the
       courts is being impeded. Indeed, the California Supreme Court has
       suggested that, in certain cases, appointment of counsel may be the only
       remedy available to protect a prisoner litigant’s right of meaningful court
       access: ‘In an appropriate case, and as a last alternative, appointment of
       counsel may be the only way to provide an incarcerated, indigent civil
       defendant with access to the courts for the protection of threatened personal




8     The same is true of the United States Constitution and the federal statute, even
when the lawsuit alleges violations of constitutionally protected rights. (Jackson v.
Dallas Police Dept. (5th Cir. 1986) 811 F.2d 260, 261 (Jackson).)


                                             15.
       and property rights.’ (Yarbrough, supra, 39 Cal.3d at pp. 200–201.)”
       (Apollo, supra, 167 Cal.App.4th at p. 1484.)9
       Another aspect of the discretionary authority relates to how a trial court should
balance the right of meaningful access to the court against the important principles that
(1) indigent litigants “are entitled to the same, but no greater, rights than represented
litigants” and (2) “trial courts have a duty in the name of public policy to expeditiously
process civil cases.” (Apollo, supra, 167 Cal.App.4th at p. 1487.) The First District
stated these important principles “must yield to the even greater principles of providing in
propria persona litigants with meaningful access to the courts and of deciding bona fide
civil actions on their merits.” (Apollo, supra, at p. 1487.)
              3.     Federal Approach to Appointing Counsel
       Smith’s motion for the appointment of counsel did not cite a decision by any court
of the State of California. Instead, he cited federal decisions. (See Moore v. Mabus (5th
Cir. 1992) 976 F.2d 268, 272 [reversed denial of motion for appointment of counsel for
indigent plaintiff alleging constitutional violations, stating “district court should promptly
appoint qualified counsel”]; Terrell v. Brewer (9th Cir. 1991) 935 F.2d 1015, 1017
[district court’s denial of motion for appointment of counsel pursuant to 28 U.S.C. § 1915
reviewed for an abuse of discretion]; McKeever v. Israel (7th Cir. 1982) 689 F.2d 1315,
1319 [district court failed to exercise its discretion under 28 U.S.C. § 1915(d) because it
did not recognize its authority to appoint counsel for plaintiff].) Because of the overlap
between the federal and state constitutional rights to meaningful access to the courts, we
briefly summarize the federal decisions.
       The federal statute authorizing prisoners to bring civil actions in forma pauperis
provides that “[t]he court may request an attorney to represent any person unable to

9      In Yarbrough, the Supreme Court stressed the distinction between the discretion to
appoint counsel and the lack of authority to order the payment of public funds to
compensate such appointed counsel for indigent prisoners in civil actions. (See Apollo,
supra, 167 Cal.App.4th at p. 1484, fn. 12.)


                                             16.
afford counsel.” (28 U.S.C. § 1915(e)(1).) As stated in the cases cited by Smith, this
provision grants federal district courts the discretionary authority to appoint counsel for
indigent civil plaintiffs. However, appointment of counsel is not simply a matter of
routine. Many federal courts have interpreted this provision to authorize the appointment
of counsel for indigent civil litigants when “exceptional circumstances” exist. (E.g., Byrd
v. Maricopa County Board of Supervisors (9th Cir. 2017) 845 F.3d 919, 925; Jackson,
supra, 811 F.2d at p. 261 [“district court is not required to appoint counsel unless the case
presents ‘exceptional circumstances’ ”]; see 3 Mushlin, Rights of Prisoners, supra, §
12:24, p. 230, fn. 34.) In determining the existence of exceptional circumstances, federal
district courts consider “(1) the type and complexity of the case; [¶] (2) whether the
indigent is capable of adequately presenting his case; [¶] (3) whether the indigent is in a
position to investigate adequately the case; … [¶] (4) whether the evidence will consist in
large part of conflicting testimony so as to require skill in the presentation of evidence
and in cross examination” and (5) “whether appointed counsel would aid in the efficient
and equitable disposition of the case.” (Jackson, supra, 811 F.2d at p. 262.)
              4.     Relevant Circumstances
       The next two legal questions we resolve relate to the trial court’s determination of
whether an inmate’s “access to the courts is being impeded.” (Apollo, supra, 167
Cal.App.4th at p. 1484.) First, we conclude the determination of whether access is being
impeded is committed to the trial court’s discretion. This determination is intertwined
with the question of the appropriate remedy or remedies to secure meaningful access
because the resolution of each often will involve an evaluation of the same facts and
circumstances. (See Wantuch, supra, 32 Cal.App.4th at p. 793 [factors to be considered
in determining appropriate remedy to secure access].) Therefore, it is internally
consistent to treat both inquiries as committed to the trial court’s discretionary authority.




                                             17.
       Second, we conclude a trial court must examine the totality of the circumstances
when making the discretionary determination of whether an inmate’s access is being
impeded. It follows that the relevant circumstances include, without limitation, the
factors listed in the federal decisions for determining whether exceptional circumstances
exist in a particular case.10 Accordingly, trial courts should consider those factors when
weighing the totality of the circumstances before deciding whether an inmate’s access to
the courts is being impeded.
       B.     Smith’s Motion and Its Denial
              1.     Smith’s Arguments
       Smith’s motion for the appointment of counsel did not refer to the constitutional
and statutory right of access to the courts and did not cite Apollo, Wantuch, or any other
California decision. Instead, Smith relied on federal cases and asserted the trial court
should consider the factual complexity of the case; the ability of the inmate to investigate
the facts; the ability of the inmate to get discovery and expert witnesses; and the
complexity of the legal issues. Smith argued the issues involving his medical condition
and need for pain medication were factually complex and probably would require him to
present a medical expert witness, cross-examine any expert witnesses called by
defendants, or both. Smith stated he had no ability to investigate medical data on drugs,
spinal stenosis, or its treatment. Smith argued the appointment of counsel was supported


10      Defendants’ supplemental brief asserts: “Neither Mr. Smith’s pro-per nor
incarcerated status barred him from sourcing his own expert. Identically situated
individuals have surpassed both hurdles.” Defendants support this assertion by citing
Jameson, supra, 215 Cal.App.4th at page 1149 (inmate presented expert testimony that
doctor’s breach of the standard of care caused inmate to receive numerous unnecessary
injections of interferon, which a jury could find was painful and inherently injurious).
The fact a reported decision shows a self-represented inmate was able to obtain a medical
expert in a particular malpractice action may establish context for the issue, but it is not
evidence tending to prove Smith is capable of obtaining his own expert and, thus, is not
directly relevant to whether Smith’s right to access is being impeded.


                                             18.
by the fact that he was an indigent inmate who did not complete high school and had no
legal training. Smith stated presenting his legally complex medical malpractice claims to
a jury required greater skill than he had or could develop. In addition, he argued his
claims had sufficient merit on their face to weigh in favor of appointing counsel.
              2.     The Trial Court’s Decision
       The trial court’s written order denying Smith’s ex parte motion for the
appointment of counsel stated Smith had “failed to provide any authority that would
support the request that this court appoint an attorney in this civil action.” The court
noted the constitutional right to counsel for criminal defendants and the establishment of
the office of the public defender to provide that representation. The court referred to
Government Code section 27706 as setting forth the grounds for appointing the public
defender and concluded none of those grounds were present in this case. The court then
reiterated that “[t]he authority cited by [Smith] has no application to this case” and
concluded it was “without authority to appoint an attorney in this case.” As a result, the
court denied Smith’s motion.
       C.     Arguments Presented on Appeal
              1.     Initial Appellate Briefing
       Smith’s opening brief contends the “denial [of] appointment of counsel for
medical expert” was an abuse of discretion. Defendants contend the trial court did not
abuse its discretion by failing to appoint Smith an expert because he never asked the trial
court for an expert and, even if a motion had been made, Smith did not establish the court
had the authority to provide him with an expert at no cost. We agree with defendants and
will therefore not address the expert appointment issue further.
              2.     Supplemental Briefing Request
       In May 2019, this court requested supplemental briefing under Government Code
section 68081 of issues relating to the trial court’s order denying the appointment of



                                             19.
counsel. Based on Apollo, Wantuch and the California Supreme Court cases addressing
the appointment of counsel for indigent defendants in civil cases (Yarbrough, supra, 39
Cal.3d 197; Payne, supra, 17 Cal.3d 908), we requested the parties to assume that, in
certain circumstances, “California trial courts have the discretionary authority to appoint
counsel for indigent plaintiffs who are state prisoners.” Our questions asked the parties,
among other things, (1) how we should interpret the trial court’s order in the event the
available record was unclear as to whether the trial court conducted the three-step inquiry
described in Apollo and Wantuch before denying the motion for appointment of counsel
and (2) what the appropriate remedy should be if the trial court misunderstood the nature
and scope of its discretionary authority to appoint counsel.
              3.     Defendants’ Supplemental Brief
       Defendants’ supplemental brief stated the trial court did not conduct the three-step
inquiry used in Apollo and Wantuch in deciding Smith’s motion for appointment of
counsel. Defendants contended that when interpreting the order this court should
“presume the trial court knew of its obligations under Wantuch and Apollo but found
them inapplicable because Mr. Smith had raised only an appointment-of-counsel issue,
and not a court-access issue.” In a related argument, defendants contend that, even if one
assumes the trial court misunderstood the nature and scope of its discretionary authority,
there is no need to remand with directions for the trial court to conduct that inquiry
because “Smith failed to make a prima facie showing of a denial of meaningful access to
the courts.” In other words, defendants contend there was no duty to conduct the three-
step inquiry because Smith’s arguments and showing did not trigger that duty.
       Defendants also argue that nothing in Wantuch, Apollo or Jameson supports the
conclusion that a trial court is obligated to conduct the three-step inquiry every time an
indigent prisoner-plaintiff moves for appointment of counsel. Furthermore, defendants
contend Smith’s situation is not similar to the extraordinary difficulties faced by the



                                             20.
litigants in Wantuch, Apollo and Jameson. In defendants’ view, Smith sought a court-
appointed attorney not to protect his right to prosecute the action and obtain appellate
review, but because he wanted to improve his chances of success in the litigation.11
              4.     Smith’s Supplemental Brief
       Smith’s supplemental brief agreed with defendants’ statement that the trial court
did not conduct the three-step inquiry used in Apollo and Wantuch in deciding the motion
for appointment of counsel. However, Smith disagrees with defendants’ contention as to
the reason. Defendants contended Smith failed to make a prima facie showing of a denial
of meaningful access to the courts. Smith argues he made a prima facie showing and this
court can interpret the trial court’s “statement about the absence of authority as meaning
it did not conduct that three-step inquiry.” As to the appropriate appellate relief, Smith
contends this court should reverse the trial court’s order and instruct it to conduct the
three-step inquiry and appoint counsel for purpose of a medical expert. Smith reasserts
his argument that a medical expert is necessary to establish the required standard of care
and that defendants deviated from it. Smith states an appointed attorney could investigate
the misrepresentation of medical records and the untrustworthy documents submitted to
the court with the motion for summary judgment.
       D.     Interpreting the Trial Court’s Order
       The first step in our analysis of the trial court’s order addresses how to interpret
that order. Specifically, was the trial court aware of its discretionary authority to appoint
counsel and did the trial court actually exercise that discretion in denying the motion?




11     Where, as here, an inmate’s motion satisfies the requirements of nonfrivolousness
applicable to civil filings generally (Code Civ. Proc., § 128.7), this distinction relating to
the inmate’s subjective motivation for seeking counsel is irrelevant to whether the
inmate’s access to court is being impeded or to the appropriate measures to remedy any
impediment.


                                             21.
              1.     Presumption of Correctness
       “[I]t is a fundamental principle of appellate procedure that a trial court [order or]
judgment is ordinarily presumed to be correct and the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.” (Jameson, supra, 5 Cal.5th at
pp. 608–609.) Stated another way, all presumptions are indulged to support the trial
court order or judgment “on matters as to which the record is silent, and error must be
affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
The presumption of correctness and the allocation of the burden to the appellant is part of
the constitutional doctrine of reversible error. (Ibid.; see Cal. Const., art. VI, § 13.) This
doctrine and the principles derived from it are the foundation for our interpretation of the
trial court’s written order denying Smith’s motion for appointment of counsel.
Accordingly, we consider whether the presumption of correctness applies.
              2.     Rules Governing Interpretation of Order
       Generally, the “interpretation of an appellate opinion is governed by the rules of
construction that apply to any other writing.” (16 Cal.Jur.3d (2012) Courts, § 328, p.
880.) Similarly, “[t]he meaning and effect of a judgment is determined according to the
rules governing the interpretation of writings generally.” (People v. Landon White Bail
Bonds (1991) 234 Cal.App.3d 66, 76.) We conclude the same rules apply to the
interpretation of a written order issued by a trial court. Under those rules, the entire order
is taken by its four corners and construed as a whole. (Ibid.) Also, the order’s language
is viewed in light of the facts and the issues before the court, and each statement is
considered in its proper context. (See 16 Cal.Jur.3d, supra, Courts, § 328, p. 880.)
              3.     Presumption Does Not Apply
       As noted, the presumption of correctness applies to “matters as to which the record
is silent.” (Denham, supra, 2 Cal.3d at p. 564.) Here, the order was not silent on the
matter of the court’s authority to appoint counsel. The order discussed the constitutional


                                             22.
right of criminal defendants to be represented and the appointment of the public defender
under Government Code section 27706. The order stated Smith was “not subject to
criminal prosecution” and no statutory ground for appointing a public defender was
present. Thus, the court was not silent on the matter of its authority to appoint counsel.
Consequently, we do not presume the court was aware of its discretionary authority to
appoint counsel and actually exercised that discretion.
              4.     Trial Court Was Unaware of Its Discretionary Authority
       Having concluded the presumption of correctness does not apply, we address what
the trial court meant when it said it was “without authority to appoint an attorney in this
case.” Defendants argue this statement means the court concluded Smith failed to make a
prima facie showing of a denial of access and, based on this result, the court reached the
further conclusion that it had no duty to conduct the three-step inquiry described in
Apollo and Wantuch. Based on the contents of the order as a whole and the context
provided by Smith’s motion, we interpret the order to mean the court did not recognize it
had the discretionary authority to appoint counsel. That discretionary authority is
described in Apollo and Wantuch and is derived from Penal Code section 2601,
subdivision (d) and the constitutional protections given the right of access to the courts.
The court made no reference to Penal Code section 2601, Apollo, Wantuch, or the
California Supreme Court cases addressing the appointment of counsel for indigent
defendants in civil actions. (See Yarbrough, supra, 39 Cal.3d at pp. 200–201; Payne,
supra, 17 Cal.3d at p. 924.) More generally, the court did not mention civil litigants’
constitutional right of access to the courts. Therefore, we interpret the trial court’s order
to mean the court did not recognize its discretionary authority.
       “[A] court that is unaware of its discretionary authority cannot exercise its
informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [sentencing
discretion]; see Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1105



                                             23.
[trial court was unaware of its discretionary authority under statute; the matter was
remanded to trial court with directions to exercise its discretion].) Here, the trial court
did not recognize its discretionary authority and, as a result, committed legal error in
concluding it was without the authority to appoint counsel.
       E.     Waiver of the Right to Access to the Courts
       With some irony, defendants’ supplemental brief contends: “By failing to raise an
access-to-court argument below, Mr. Smith cannot complain about the issue now under
the waiver doctrine.” We reject this waiver argument.
       First, California law defines waiver as the intentional relinquishment or
abandonment of a known right or privilege. (Smith v. Adventist Health System/West
(2010) 182 Cal.App.4th 729, 745.) Under this definition, waiver is based on intent.
(Ibid.) The intent to waive may be expressed in words, either oral or written, or implied
by a party’s conduct. (Ibid.) Here, Smith has not expressly relinquished his right of
access to the courts. As to an implied relinquishment, Smith’s conduct includes pursuing
the malpractice claim and, more specifically, filing a motion for appointment of counsel
supported by arguments that he was unable to adequately represent himself because of his
incarceration, lack of education and training, and probable difficulty in obtaining an
expert witness. This conduct demonstrates an intent to use the judicial system to seek the
redress for the allegedly substandard medical care, which is inconsistent with an intent to
relinquish the right of access to the courts. Therefore, we conclude it is not objectively
reasonable to infer Smith intended to give up that right.
       Similarly, it is not objectively reasonable to infer Smith had the knowledge
required to establish a waiver. Defendants’ waiver argument has referred to no
documents or other evidence in the record supporting a reasonable inference that Smith
knew the nature and extent of his right of access to the court and how that right related to
the appointment of counsel pursuant to the trial court’s discretionary authority.



                                             24.
Therefore, an intentional relinquishment or abandonment of a known right of access is not
established by the record.
       Second, and most importantly, when an indigent plaintiff in a civil action requests
the appointment of counsel, that request should be interpreted as invoking the right of
meaningful access to the courts, even if the indigent plaintiff does not explicitly mention
that right. Courts generally are required to give pleadings a liberal, yet reasonable,
construction (Code Civ. Proc., § 452), and the same approach is warranted when an
indigent, self-represented plaintiff requests the appointment of counsel. Based on current
State of California and federal constitutional law, it is objectively reasonable to interpret
such requests as being based on the right to meaningful access to the courts. The
alternate principle, which would conclude a trial court need consider its discretionary
authority to appoint counsel if and only if a self-represented, indigent plaintiff explicitly
mentions the right of meaningful access, would itself operate as a barrier to meaningful
access. We further conclude that trial courts evaluating a request for the appointment of
counsel by an indigent plaintiff must (1) recognize their discretionary authority to appoint
counsel or implement other measures to afford the plaintiff meaningful access to the
courts and (2) exercise that discretion in an informed manner. This obligation or
responsibility imposes a small burden on trial courts as they should be aware of their role
in the administration of justice, the constitutional principles that define that role, and the
rights of persons resorting to the court system. If this responsibility was not inherent in
the constitutional and statutory right of access to the courts, then indigent litigants most
in need of protection because of their inability to effectively represent themselves would
be the least likely to obtain protection.
       Consequently, the doctrine of waiver does not preclude this court from considering
Smith’s right of meaningful access to the courts as the basis for the appointment of
counsel or appointment of an expert, even though he did not cite cases such as Apollo and
Wantuch or explicitly mention the right in the trial court proceedings.

                                              25.
       F.      Appellate Relief for Failure to Exercise Discretion
       Our conclusion that the trial court was not aware of its discretionary authority and,
as a result, did not exercise that discretion leads to the following question: What
appellate relief, if any, is appropriate? The possible answers include (1) declaring the
error harmless; (2) remanding the case to the trial court to exercise its discretion; and (3)
directing the trial court to appoint counsel because the circumstances so overwhelmingly
favor the appointment of counsel that it would be an abuse of discretion to deny the
request.
       In Apollo and Wantuch, the appellate courts chose the middle ground, reversing
the judgment and remanding to the trial court to exercise its discretionary authority.
(Apollo, supra, 167 Cal.App.4th at p. 1488; Wantuch, supra, 32 Cal.App.4th at pp. 795–
796; cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 426–428 [ordering remand for
resentencing where trial court is unaware of its sentencing discretion].) We conclude the
same approach is appropriate in this case. There is a reasonable possibility that a result
more favorable to Smith would have been reached in the absence of the failure to
exercise discretionary authority. (See Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 574 [test for reversible error in civil case].) Therefore, the error was not harmless.
       Conversely, the circumstances are not so overwhelming that the only proper
exercise of discretion is the appointment of counsel. While Smith has made a prima facie
showing on appeal that he is indigent and his claim is bona fide, the resolution of the first
two steps of the three-step inquiry described in Apollo and Wantuch is better left to the
trial court in the first instance. Similarly, the choice among the various measures
available to protect the right of access to the courts is better left to the trial court, which is
responsible for overseeing the litigation and better situated to evaluate how one or a
combination of measures would operate “to ensure indigent prisoner litigants are afforded
meaningful access to the courts.” (Apollo, supra, 167 Cal.App.4th at p. 1483, citing
Wantuch, supra, 32 Cal.App.4th at pp. 792–793.) Its choice of measures may be affected


                                               26.
by the answer to the factual questions about compensating experts noted earlier in
footnote 9.
       Consequently, we reverse the judgment and remand for further proceedings in
which the trial court is directed to “first determine whether appellant is indigent” and next
determine whether the lawsuit involved a bona fide threat to his personal or property
interests. (Apollo, supra, 167 Cal.App.4th at p. 1485.) If those two conditions are
present, the trial court must consider what remedies are available to protect Smith’s right
to meaningful access to the court, which remedies include the appointment of counsel and
the appointment of an expert under Evidence Code section 730. (See Apollo, supra, at p.
1486; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 833 [“trial court has discretion in
the appointment and selection of expert witnesses”]; In re Marriage of E.U. & J.E.
(2012) 212 Cal.App.4th 1377, 1389 [trial court’s decision under Evid. Code, § 730
reviewed for an abuse of discretion].)12
       In the unpublished part of this opinion, we conclude Smith’s challenges to the
grant of summary judgment have not demonstrated reversible error. Nevertheless, we
will conditionally vacate the order granting the motion for summary judgment pending
the outcome of the further proceedings relating to Smith’s right of access to the courts.
Those further proceedings might result in the adoption of measures that cause the trial


12     We do not reach the following legal question, which has not been briefed by the
parties: Are California trial courts required to place on the record explicit oral or written
findings explaining the exercise of their discretionary authority? We note, however, that
in some contexts involving discretionary determinations, such findings are required “to
make meaningful appellate review possible.” (Ramos v. Countrywide Home Loans, Inc.
(2000) 82 Cal.App.4th 615, 629 [explicit findings required when trial court departs from
lodestar attorney fee approach and applies a multiplier]; cf. Jackson, supra, 811 F.2d at p.
262 [federal trial courts should make specific findings on each of the relevant factors
when deciding a motion for appointment of counsel in a civil rights case]; Robbins v.
Maggio (5th Cir. 1985) 750 F.2d 405, 413 [district courts’ cursory findings insufficient;
cases remanded for more specific findings as to why counsel was denied in each of the
cases].)


                                            27.
court to reopen the motion for summary judgment, consider Smith’s previous opposition
papers (see fn. 3, ante), and allow Smith or an attorney representing him to present
additional materials or more refined arguments in opposition.

II.    SUMMMARY JUDGMENT*
       Despite the reversal on another ground, we must consider whether Smith has
demonstrated the grant of summary judgment was error. If Smith’s arguments warrant
the entry of an order denying the motion for summary judgment, the further proceedings
conducted on remand will be affected.
       A.     Medical Treatment at Pleasant Valley
       On September 6, 2011, Smith met with medical staff for an intake evaluation for
his arrival at Pleasant Valley. The medical records reflect Smith was evaluated and
medical staff noted his chronic shoulder pain, continued his pain medication, and
scheduled a further evaluation by a primary care provider. Later in September, Smith
met with a physical therapist for an evaluation of his shoulder, received a
recommendation of physical therapy once a week, and had five sessions for shoulder
therapy.
       On October 18, 2011, Smith met with Nurse Practitioner I. Ogbuehi for a primary
care evaluation. Smith was provided an initial pain assessment form on which he
specified he was suffering from pain in his left shoulder, lower back and right knee. A
week later, Smith again met with Ogbuehi. The records reflect she completed a chronic
pain intake sheet in which she noted Smith’s shoulder was his main source of pain.
Smith disputes that his shoulder was the “main” source of his pain, stating he had
informed her of his back and knee pain.
       On December 5, 2011, Smith again met with Ogbuehi. The parties dispute the
purpose of this meeting. Defendants assert Smith refused examination and became angry

*      See footnote, ante, page 1.


                                            28.
and left when told of the plan to taper his pain medication. Smith asserts the visit was
supposed to be a follow-up and “[t]he follow-up was only physical therapy and pain
medication.” Defendants assert the records show Ogbuehi continued Smith’s pain
medication until the next chronic pain follow-up visit.
       On December 21, 2011, Smith again met with Ogbuehi. Defendants assert the
records indicate Smith told Ogbuehi that he refused examination and she referred Smith
to the pain management clinic. Smith asserts he “said to Nurse Practitioner Ogbuehi, if I
am here to talk about medication and ‘not’ my chronic pain condition I am gone. I left.
It was not about my knee, back, or shoulder.”
              1.     Left Shoulder
       On January 11, 2012, Smith met with the Clinical Case Management Review
Committee. Defendants assert the records reflect Smith’s main complaint was his left
shoulder and the committee recommended reevaluation by an orthopedic surgeon. Smith
contends his left shoulder was not his main complaint, but it was the only complaint that
Ogbuehi and the committee would concern themselves with.
       On February 10, 2012, Smith’s shoulder was evaluated by Dr. Y. N. Paik of the
Pacific Orthopedic Medical Group. Dr. Paik requested an x-ray and arthrogram and
recommended passive range of motion exercises in the meantime. On May 4, 2012, after
the x-ray and arthrogram were completed, Smith again met with Dr. Paik, who
recommended arthroscopic joint debridement, excision of multiple loose bodies and sub-
acromical decompression, and repair of the rotator cuff. Dr. Paik recommended
continuing the exercises and pain medication. In August 2012, Smith underwent
arthroscopic joint debridement and sub-acrominal decompression to his left shoulder.
Attempts to reattach his rotator cuff were unsuccessful. On August 20, 2012, Smith met
with Dr. Paik, who opined that Smith was not a candidate for reattachment of the rotator




                                            29.
cuff due to retraction and extensive tear. Dr Paik recommended intensive exercise to
build strength in the shoulder.
       Smith disagreed with this opinion, stating his tendon could be repaired and he
should have been a candidate for reattachment. Defendants address Smith’s claim
relating to delayed treatment of his shoulder by asserting the date upon which the tendon
could have been accessible in surgery before retraction is not known. Smith disputes this
assertion, stating the March 28, 2012, arthrogram revealed a supraspinatus tendon tear
and not a retraction of the tendon. Thus, one of the claims alleged by Smith in this
litigation is that his shoulder became unrepairable due to delays in his treatment at
Pleasant Valley.13
       After the arthroscopic procedure to his shoulder, Smith underwent physical
therapy and the pain in his left shoulder lessened. Medical records reflect Smith
completed physical therapy for his shoulder in June 2013 and his pain had decreased.
Records from a September 2016 evaluation of Smith at Folsom reflect Smith reporting
intermittent morning stiffness in the shoulder, but his shoulder was not noted as one of
his current conditions.
              2.     Back Condition
       While at Pleasant Valley, Smith complained of pain related to his back condition.
On October 25, 2011, Ogbuehi performed tests related to the back complaint, including a
straight leg raise test and an axial loading test. From June 2012 through December 2013,
the medical records describe nine meetings between Smith to Ogbuehi in which she
evaluated Smith and reported a negative straight leg raise test. Smith disputes the
completeness and correctness of the leg raise test and appears to contend the failure to


13     Defendants’ medical expert noted Dr. Paik did not call for immediate surgery after
the February 2012 initial consultation or the May 2012 evaluation. The expert states
Smith cannot establish an earlier surgery, such as a surgery prior to Ogbuehi’s initial
evaluation of Smith in October 2011, would have been successful.


                                            30.
properly conduct the test is one reason for the inappropriate handling of his pain
medication.
                 3.   Right Knee
       While at Donovan, no arthroscopic surgery was performed on the meniscus tear in
Smith’s right knee because his shoulder injury precluded the use of crutches. Smith
contends Ogbuehi would not accept his documents about his knee problem and she took
11 months to call the records office and get his file, which showed he had a meniscus tear
and a recommendation from an orthopedic surgeon for surgery. In June 2012, Smith
submitted an inmate grievance relating to the treatment of his knee. In July 2012, Smith
requested knee surgery, which was denied because Smith had not completed physical
therapy. From August through October 2012, Smith received 10 physical therapy
sessions for his knee. No knee surgery was performed while Smith was at Pleasant
Valley or after his transfer to Folsom.
                 4.   Pain Medication
       Smith contends his pain medication was mishandled while at Pleasant Valley. He
claims his morphine was inappropriately reduced and his gabapentin was inappropriately
withdrawn. Smith also claims he was inappropriately prescribed oxcarbazepine and
amitriptyline.
       While at Donovan, Smith was given extended release morphine and his dosage
increased to 30 milligrams (mg) three times per day. Initially, this morphine dosage was
continued at Pleasant Valley.
       In September 2011, Smith’s noon morphine dosage was changed from 30 mg of
extended release morphine to 30 mg of instant release morphine. On November 20,
2011, Smith’s gabapentin prescription was discontinued.
       In December 2011, Smith’s morphine prescription was reduced from 90 mg per
day to 60 mg per day for seven days, then reduced to 45 mg per day for seven days, and



                                            31.
then 30 mg per day. However, on January 20, 2012, Ogbuehi increased Smith’s
morphine from 30 mg per day to 75 mg per day. In October 2012, after Smith’s shoulder
surgery and physical therapy, Ogbuehi met with Smith and proposed reducing his
morphine prescription. The medical records reflect Smith was offered 60 mg of
morphine per day from October 4, 2012, to October 9, 2012, and 45 mg per day from
October 10, 2012, to September 6, 2013.14 On September 6, 2013, Smith’s morphine
prescription was increased to include a morning dose. For the remainder of his time at
Pleasant Valley, Smith received 15 mg of extended release morphine in the morning, 15
mg of instant release morphine at noon, and 30 mg of extended release morphine in the
evening.
       The medical records reflect Ogbuehi proposed prescribing amitriptyline (Elavil)
for Smith’s chronic pain, which Smith refused. Amitriptyline is a tricyclic antidepressant
drug used in treating neuropathic pain, with or without coexisting depression. Because
Smith was not actually administered amitriptyline, defendants’ expert opined that he was
not harmed by the proposal for its use.
       B.     Contentions of the Parties
              1.     Smith’s Opening Brief
       Smith contends he was denied the standard of care applicable to a neurologist for
his spinal condition and an orthopedic specialist for the meniscus tear in his right knee.
He argues defendants were under a duty to exercise that degree of diligence, care and
skill ordinarily possessed by other members of the profession and the failure to do so is
malpractice. He appears to argue the evidence presented by defendants did not establish
they performed in accordance with the applicable standard of care. He argues defendants
did not present any declarations stating their degree of learning and training. He also

14     In December 2012, the medical records reflect Ogbuehi prescribed oxcarbazepine
for back pain. Smith contends he never once took oxcarbazepine and, therefore, the
statement in the records that he refused to continue the prescription are inaccurate.


                                             32.
argues Dr. Duenas’s declaration is insufficient to support the entry of summary judgment
because she was a physician and surgeon and did not specialize in neurology or
orthopedics.
               2.     Defendants’ Response
       First, defendants contend it was not essential for them to submit their own
declarations because the declaration of their expert, Dr. Duenas, was sufficient to carry
their burden of showing their conduct fell within the community standard of care and,
therefore, they were entitled to summary judgment unless Smith came forward with
conflicting expert evidence. (Munro v. Regents of University of California (1989) 215
Cal.App.3d 977, 985; see Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632
[discussion of exceptional principle requiring fact finder to accept uncontradicted expert
testimony in professional negligence cases where standard of care must be established by
expert testimony].) Second, they argue Dr. Duenas was qualified as a medical expert and
California law does not require a medical expert to specialize in the particular field in
question.
               3.     Smith’s Reply
       Smith contends the declaration of Dr. Duenas is conclusory and insufficient to
establish defendants were entitled to summary judgment. Based on this failure to carry
their initial burden, Smith argues it was not necessary for him to file a declaration of a
medical expert to contradict Dr. Duenas’s declaration. In addition, Smith presents the
following argument:

       “Plaintiff deposition was taken on Aug. 30, 2016 and the Attorney General
       ask for Dr. Duenas for her expert opinion and receive it Dec. 13, 2016. The
       court could clearly infer that the expert declaration was made on the
       information provided by the Attorney General for the purpose of the
       lawsuit. The declaration of Dr. Duenas is conclusory and insufficient to
       withstand summary judgment. [¶] The judgment must be reversed.”




                                             33.
       Subsequently, Smith restated the point that the opinions in Dr. Duenas’s
declaration “were based on information she was provided by Attorney General after
Plaintiff was deposed.”
       C.      Qualifications of a Medical Expert
       The qualification of a witness as an expert is addressed in Evidence Code section
720, subdivision (a), which states: “A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” Under this statute, “[w]hether a
particular witness has the qualifications necessary to give an expert opinion on a specific
topic is an issue primarily left to the trial court’s broad discretion, and it is difficult to
attack that exercise of discretion” on appeal. (Kennedy & Martin, Cal. Expert Witness
Guide (Cont.Ed.Bar 2d ed. 2018) § 3.1, p. 3-1.)
       In Brown v. Colm (1974) 11 Cal.3d 639, our Supreme Court stated: “The
unmistakable general trend in recent years has been toward liberalizing the rules relating
to the testimonial qualifications of medical experts.” (Id. at p. 645.) Later in the opinion,
Brown v. Colm, the court referred to this trend and described cases in which a medical
expert was not required to have expertise as to the precise injury involved in the
litigation:

       “[A] pathologist was qualified to testify as to causes of aseptic necrosis
       (Agnew v. City of Los Angeles (1950) 97 Cal.App.2d 557, 566 [218 P.2d
       66]); an expert in otolaryngology to testify regarding plastic surgery
       (Mirich v. Balsinger (1942) 53 Cal.App.2d 105 [127 P.2d 639]); a
       homeopathic physician and surgeon to testify on the degree of care required
       of a physician educated in the allopathic school of medicine (Hutter v.
       Hommel (1931) 213 Cal. 677, 681 [3 P.2d 554]); a pathologist and
       professor of pathology to testify on the subject of gynecology (Cline v.
       Lund [(1973)] 31 Cal.App.3d [755,] 766).” (Brown v. Colm, supra, at p.
       646.)
       Subsequent decisions by the Courts of Appeal have recognized that “work in a
particular field is not an absolute prerequisite to qualification as an expert in that field.”


                                               34.
(Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274.) For instance, in
Miller v. Silver (1986) 181 Cal.App.3d 652, the Second District determined a psychiatrist
was competent to testify on the standard of care for a plastic surgeon’s administration of
antibiotic therapy to an implant patient. (Id. at p. 660.) After examining the content of
the psychiatrist’s declaration, the Second District concluded it was sufficient to create a
triable issue of fact and reversed the summary judgment in favor of the plastic surgeon.
(Id. at pp. 661–662.)
       Based on the foregoing cases, we conclude Dr. Duenas need not be a specialist in
neurology or orthopedics to give an expert opinion on the standard of care. Accordingly,
we reject Smith’s argument that Dr. Duenas was not qualified to provide an expert
opinion about whether the care he received met the applicable standard of care.
       D.     Dr. Duenas’s Declaration Was Not Shown to Be Conclusory
       Smith makes the general assertion that Dr. Duenas’s declaration was conclusory
and, therefore, did not provide sufficient evidence to justify the grant of a summary
judgment. This argument is not adequately developed to inform this court of the specific
conclusions being challenged. We note that Dr. Duenas’s declaration was 30 pages long
(without attachments) and contained 93 numbered paragraphs. Under heading “IV.
Plaintiff’s Shoulder Condition,” Dr. Duenas spent about five pages describing excerpts
from Smith’s medical records, the injury to the shoulder, and a chronology of the care
given. That description preceded her opinion that defendants’ “handling of plaintiff’s
shoulder condition did not cause the claimed harm plaintiff pled in his amended
complaint.” Similarly, other sections of the declaration addressed Smith’s back
condition, knee condition, the medications prescribed, and the claimed causal link
between defendants’ actions and Smith’s continuing pain.
       Without a more detailed argument from Smith, it is not possible for this court to
decipher precisely how Smith believes the opinions provided by Dr. Duenas are



                                             35.
conclusory or, alternatively, how the declaration fails to provide an adequate description
of the basis for the opinions. It may be that Smith viewed Dr. Duenas’s declaration as
conclusory because his response to defendants’ separate statement raises specific points
not addressed in her declaration. For instance, Smith contends the March 28, 2012,
arthrogram revealed a supraspinatus tendon tear and not a retraction of the tendon. When
this contention is compared to Dr. Duenas’s general statement about retraction of the
tendon,15 one can see why Smith might regard her statement as conclusory. A second
example of why Smith might view Dr. Duenas’s declaration as conclusory relates to his
specific claim that Ogbuehi did not properly conduct the straight-leg test for evaluating
low back pain because she simply asked him to straighten his leg while he was seated in a
chair. Although we cannot evaluate the merits of Smith’s arguments about the test given
the record and procedural posture of this case, we recognize the reason Dr. Duenas did
not address these specific arguments is that they were not raised by Smith at a point in the
proceedings where defendants had an opportunity to respond.
       Consequently, we conclude Smith has not demonstrated the trial court erred in
relying on Dr. Duenas’s opinions to conclude defendants had carried their initial burden
of establishing facts that justify a judgment in their favor. (See Brantley v. Pisaro (1996)
42 Cal.App.4th 1591, 1602 [second step of summary judgment analysis addresses
whether the moving party’s evidence makes a prima facie showing that justifies a
judgment in movant’s favor and shifts burden to opposing party to show the existence of
a triable issue of material fact].) We note, however, that Smith’s inability to state this
argument clearly and his failure to conduct discovery on the specific points raised are
indicative of his ability to effectively represent himself in this action and the complexity




15    In her declaration, Dr. Duenas stated: “The date upon which the tendon could
have been accessible in surgery before retraction is not known.”


                                             36.
of the legal and factual aspects of this case, which are circumstances relevant to his right
of access to the courts and the requests for the appointment of counsel and an expert.
       E.     Absence of Declarations from Defendants
       Smith’s opening brief asserts defendants did not submit their own declarations
stating that they have the degree of learning and skill ordinarily possessed by a
neurologist or neurosurgeon or by an orthopedic specialist or orthopedic surgeon.
Defendants contend this assertion does not establish a reversible error because (1) the law
does not require defendants to present their own declarations to support a summary
judgment motion and (2) they carried their burden concerning the sufficiency of the care
provided to Smith by presenting an expert declaration that defendants’ conduct met the
community standard of care.
       Again, Smith’s argument is not presented in enough detail to determine the precise
challenge he is making to defendants’ evidence. In view of Smith’s disputes of the
accuracy of the contents of Ogbuehi’s entries in his medical reports, Smith might be
asserting that he has sufficiently challenged the credibility or reliability of those records.
Stated another way, because Smith claims that the medical records do not accurately
reflect what occurred in the meetings with him, Smith might think he has created a triable
issue of material fact. Furthermore, Smith may be contending these questions of fact
about what information was communicated during the appointments undermines Dr.
Duenas’s opinions about the adequacy of the care given because Dr. Duenas simply
assumed the entries on the medical records were accurate. (See Griffith v. County of Los
Angeles (1968) 267 Cal.App.2d 837, 847 [expert opinions, though uncontradicted, are
worth no more than the reasons and factual data upon which they are based]; CACI 219
[in deciding whether to believe an expert’s testimony, jury should consider the facts
relied upon by the expert]; see generally, Dale v. Lappin (7th Cir. 2004) 376 F.3d 652,




                                              37.
655 [inmate plaintiff’s affidavit, which was detailed, specific and based on personal
knowledge, was competent evidence to rebut motion for summary judgment].)
       The current form of Smith’s argument about the lack of declarations from each
defendant appears categorically—that is, a contention that a motion for summary
judgment by medical malpractice defendants must always be denied when it is not
supported by defendants’ own declarations setting forth their education and training. We
are aware of no authority supporting such a broad rule. Nothing in Code of Civil
Procedure section 473c categorically requires a motion for summary judgment be
supported by declarations setting forth the experience and training of the moving parties.
Also, we have located no published decisions imposing such a broad requirement.
                                      DISPOSITION
       The judgment is reversed. The matter is remanded to the trial court to vacate its
order denying the motion for appointment of counsel and to conditionally vacate its order
granting the motion for summary judgment. The motion for summary judgment shall
remain pending while the trial court conducts further proceedings not inconsistent with
this opinion, which shall include setting a schedule for supplemental briefing16 from the
parties on Smith’s right of access to the courts and the relationship of that right to his
request for appointment of counsel and the pending motion for summary judgment.




16     In his supplemental brief, Smith is not precluded from requesting the appointment
of an expert under Evidence Code section 730 because that is one of the measures
available to a trial court to protect an indigent prisoner’s right to meaningful access to the
courts. Moreover, a trial court has the discretion to consider such a measure, whether or
not requested by the inmate. In other words, an inmate may not restrict the measures
available to the trial court by omitting some measures from his or her request.


                                             38.
     Appellant shall recover his costs on appeal.


                                                    _____________________
                                                      FRANSON, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
DESANTOS, J.




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