 

Filed 6/25/14 Belton v. Spack CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT
 
 
RAYMOND BRUCE BELTON,
                                                                                       F065941,
         Plaintiff and Appellant,                                                  F066215 & F066235

          v.                                                                  (Super. Ct. No. CV-273347)
ROBERT A. SPACK et al.,

         Defendants and Respondents.                                                     OPINION




         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Raymond Bruce Belton, in pro. per., for Plaintiff and Appellant.
         Burke, Williams & Sorensen, Susan E. Coleman and Kristina D. Gruenberg for
Defendants and Respondents.
                                                        -ooOoo-
         These three consolidated appeals arise out of a single medical malpractice action
filed by plaintiff against defendants. Judgment was entered against plaintiff after
defendants’ motion for summary judgment was granted. Plaintiff challenges the denial of
his motion for reconsideration of the denial of his motion for summary judgment, the
denial of his motion for a stay pending appeal, the denial of his motion to strike
defendants’ motion for summary judgment, and the granting of defendants’ motion for
summary judgment. We find no error in the trial court’s judgment and affirm.

 
 


                   FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff, a prison inmate appearing in propria persona, sued staff physicians who
treated him while he was housed at Taft Correctional Institution, alleging medical
malpractice. On December 27, 2011, he filed a motion for summary judgment, but failed
to include a hearing date in the notice of motion. On February 1, 2012, plaintiff filed an
amended notice of motion for summary judgment, setting the hearing for March 16,
2012. Defendants did not file opposition. On March 16, 2012, the court heard and
denied plaintiff’s motion, finding the motion did not comply with statutory and court rule
requirements for notice, separate statement, memorandum of points and authorities, or
evidence.
       On March 26, 2012, plaintiff filed a motion for reconsideration of the denial of his
motion for summary judgment. In it, he asserted the trial court had inadvertently
overlooked the papers filed with the original notice of motion, and had ruled based only
on the amended notice and a supplemental request for judicial notice filed with it.
Plaintiff contended that, because defendants had filed no opposition, he was entitled to
summary judgment in his favor. On August 20, 2012, the trial court heard and denied the
motion for reconsideration. Plaintiff filed a notice of appeal from the denial of his
motion for reconsideration; he also filed a request for an immediate stay of the litigation
while the appeal was pending.
       In the interim, on June 29, 2012, defendants filed a motion for summary judgment
and set it for hearing on September 17, 2012. They contended the statute of limitations
had run on plaintiff’s claims before the complaint was filed, plaintiff failed to exhaust his
administrative remedies before filing suit, plaintiff failed to provide notice of intent to sue
before filing suit, and defendants were not negligent in the medical care they rendered to
plaintiff. Plaintiff filed no opposition to the motion, apparently relying on his request for
an immediate stay to obviate the need to file opposition. Defendants’ motion for

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summary judgment was heard and taken under submission. Plaintiff filed a motion to
strike defendants’ motion for summary judgment, but the motion was not calendared,
because plaintiff failed to obtain a hearing date for it.
       On October 1, 2012, the trial court denied plaintiff’s request for an immediate stay
and granted defendants’ motion for summary judgment. Plaintiff then refiled his motion
to strike defendants’ motion for summary judgment and set it for hearing. It was heard
and denied. Judgment was entered in favor of defendants. Plaintiff filed notices of
appeal of the order denying his request for an immediate stay and granting defendants’
motion for summary judgment and the order denying plaintiff’s motion to strike
defendants’ motion for summary judgment. We consolidated plaintiff’s three appeals and
construed the three premature notices of appeal as being taken from the judgment.
                                        DISCUSSION
I.     Motion for Reconsideration of Denial of Plaintiff’s Motion for Summary
       Judgment
       “[T]he trial court’s judgment is presumptively correct, such that error must be
affirmatively demonstrated, and where the record is silent the reviewing court will
indulge all reasonable inferences in support of the judgment.” (Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 (Yield Dynamics).) To justify
reversal, the error must also be prejudicial; this means it must appear “‘reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.’ [Citations.]” (Id. at p. 557.)
       Plaintiff challenges the trial court’s denial of his motion for reconsideration of the
denial of his motion for summary judgment. After a motion has been granted or denied
by a court, any party affected by the order may seek reconsideration based upon a
showing of new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd.
(a).) “A party seeking reconsideration also must provide a satisfactory explanation for

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the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior
Court (2005) 135 Cal.App.4th 206, 212.) “A trial court’s ruling on a motion for
reconsideration is reviewed under the abuse of discretion standard.” (Ibid.)
              Plaintiff seems to make two arguments as the basis for his challenge to the order
denying the motion for reconsideration. He contends the motion for summary judgment
should have been granted because defendants failed to oppose it; he also asserts the trial
court did not consider all the papers he filed in support of his motion for summary
judgment, but only considered the amended notice of motion and the supplemental
request for judicial notice filed with it.
              The lack of opposition to the motion for summary judgment did not constitute new
or different facts, circumstances, or law. It was known to both plaintiff and the trial court
at the time of the hearing of plaintiff’s motion. Therefore, it did not present a valid basis
for reconsideration.
              The trial court’s order denying plaintiff’s motion for summary judgment states:
“motion does not comply with CCP §437c(2) [sic] re: notice, or CCP §437c(b)(1) and
CRC, rule 3.1350(c)(2) re: separate statement, CRC rule 3.1350(c)(3) and (4) re:
memorandum and evidence. Also see CRC rules 3.1112 and 3.1110.” (Some
capitalization omitted.) Plaintiff seems to interpret this to mean the trial court found he
did not comply with the statute and rules because he did not serve and file all of the
required papers or give sufficient notice. He contends he did serve and file all of the
required papers, some in December 2011 and some in January 2012, and he gave
adequate notice if measured from the December 27, 2011, service and filing date.
              Code of Civil Procedure section 437c,1 subdivision (a), provides that a party
moving for summary judgment must serve notice of the motion and supporting papers on

                                                            
1       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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all other parties at least 75 days before the hearing date, plus an additional five days if the
notice is mailed to an address within California. Rule 3.1110(b) of the California Rules
of Court2 requires that the first page of each paper filed with a motion specify the date
and time of the hearing. Plaintiff’s initial motion for summary judgment, filed in
December 2011, neglected to specify any hearing date. When plaintiff served and filed
his amended notice of motion for summary judgment, he set the motion for a hearing date
that was only 50 days after service of the notice. Thus, adequate notice of the motion
was not given.
              When the moving party does not give 75 days’ notice of the hearing (or 80 days’
notice if served by mail), the opposing party is not required to respond to the motion on
the merits. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268.) The trial
court cannot cure the deficiency in the notice by continuing the hearing for the remainder
of the time necessary to equal 75 days’ notice; if insufficient notice is given, the moving
party must begin again and give 75 days’ notice of the hearing. (Ibid.) Similarly, where
no hearing date is set in the notice, the notice is ineffective and the opposing party has no
obligation to respond on the merits. The moving party must give notice specifying a
hearing date, and the date must be at least 75 days after service of the notice. The trial
court properly concluded plaintiff failed to comply with the statutory notice requirements
for a motion for summary judgment.
              Section 437c, subdivision (b)(1) provides:

              “The motion shall be supported by affidavits, declarations, admissions,
              answers to interrogatories, depositions, and matters of which judicial notice
              shall or may be taken. The supporting papers shall include a separate
              statement setting forth plainly and concisely all material facts which the
              moving party contends are undisputed. Each of the material facts stated
              shall be followed by a reference to the supporting evidence. The failure to
                                                            
2       All further references to rules are to the California Rules of Court unless otherwise
indicated. 
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       comply with this requirement of a separate statement may in the court’s
       discretion constitute a sufficient ground for denial of the motion.”
       Plaintiff’s initial moving papers included a memorandum of points and authorities
and a separate statement of undisputed material facts. The separate statement, however,
contained no references to supporting evidence. The only items cited in support of the
various purported facts were plaintiff’s memorandum of points and authorities and his
first amended complaint. Neither constituted evidence supporting the statements of fact.
(See § 437c, subd. (b)(1); Cassady v. Morgan, Lewis & Bockius LLP (2006) 145
Cal.App.4th 220, 241 (Cassady); Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749,
767, fn. 8 (Cole).)
       The only items submitted with plaintiff’s motion that might have been intended as
evidence in support of the motion were two pages of what appear to be medical records.
The motion did not include any declaration identifying or authenticating the documents,
or explaining their relevance to the motion. They were not referenced in the separate
statement or the memorandum of points and authorities. Thus, even if the trial court
should have, but did not, consider all the documents plaintiff filed with his initial motion
for summary judgment, plaintiff has not demonstrated any prejudicial error. The separate
statement filed in December did not comply with the statutory and rule requirements, did
not cite any evidence, and did not establish any facts as undisputed.
       The trial court did not abuse its discretion by denying plaintiff’s motion for
reconsideration of the denial of his motion for summary judgment. Additionally, plaintiff
suffered no prejudice from the denial of the motion for reconsideration; even if the trial
court had reconsidered the order on plaintiff’s motion for summary judgment, plaintiff
would not have been entitled to summary judgment because he submitted no evidence in
support of his motion.




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II.    Motion for Stay
       Plaintiff challenges the denial of his request for an immediate stay of proceedings
pending appeal of the denial of his motion for reconsideration. Generally, a stay is an
equitable remedy and the granting or denying of a stay requires a court to exercise its
equitable discretion. (Webster v. Superior Court (1988) 46 Cal.3d 338, 345.)
Accordingly, the grant or denial of a stay is reviewed for abuse of discretion.
       The request for a stay was filed on September 4, 2012, between the date plaintiff’s
motion for reconsideration was denied and the hearing date for defendants’ motion for
summary judgment. Plaintiff requested the stay because he had filed an appeal of the
denial of his motion for reconsideration, defendants’ motion for summary judgment was
pending, he contended his motion for summary judgment should have been granted
because defendants failed to oppose it, and he feared defendants’ motion for summary
judgment would be granted if a stay order was not entered.
       The trial court denied plaintiff’s request for a stay, explaining:

       “Plaintiff wishes to pursue an ‘appeal’ from this court’s denial of plaintiff’s
       motion for reconsideration of the court’s denial of plaintiff’s earlier filed
       and considered MSJ. The statutory time limit within which plaintiff had to
       seek review by petition for writ has long run as of 4/10/12, twenty (20)
       days from notice of denial of the MSJ plus mailing time. See CCP section
       437c(m). The time limit is jurisdictional and not extended by the service
       and filing of a motion for reconsideration.” (Some capitalization omitted.)
       While a judgment entered after the granting of a motion for summary judgment is
appealable, an order denying a motion for summary judgment is not immediately
appealable. (§ 437c, subd. (m)(1); Los Angeles County-U.S.C. Medical Center v.
Superior Court (1984) 155 Cal.App.3d 454, 459.) An order denying summary judgment
may be reviewed by appeal from the ultimate judgment or by petition for a peremptory
writ, filed within 20 days after service of a written notice of entry of the order. (§ 437c,
subd. (m)(1); Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343.)

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Thus, plaintiff could only obtain review of the denial of his motion for summary
judgment by immediately petitioning for a writ of mandate or by waiting until entry of
the final judgment in the action and appealing that judgment. As the trial court pointed
out in its order, plaintiff did not petition for a writ within the applicable 20-day period.
       “An order denying a motion for reconsideration … is not separately appealable.”
(§ 1008, subd. (g).) Thus, plaintiff’s purported appeal from the denial of his motion for
reconsideration was not a valid appeal. “[I]f the order that was the subject of a motion
for reconsideration is appealable, the denial of the motion for reconsideration is
reviewable as part of an appeal from that order.” (Ibid.) The order that was the subject
of plaintiff’s motion for reconsideration—the order denying his motion for summary
judgment—was not separately appealable. Thus, plaintiff’s only means of appealing the
motion for reconsideration was to wait until judgment was entered and appeal from the
final judgment. Accordingly, because plaintiff’s appeal from the motion for
reconsideration was filed prematurely, the trial court did not abuse its discretion by
denying plaintiff’s motion for a stay of proceedings while that appeal was pending.
III.   Denial of Motion to Strike Defendants’ Motion for Summary Judgment
       After the hearing of defendants’ motion for summary judgment, but before the
trial court issued its ruling thereon, plaintiff filed a motion to strike defendants’ motion
for summary judgment. He asked that defendants’ motion be stricken due to their failure
to comply with section 437c, subdivision (b)(5), which provides that “[e]videntiary
objections not made at the hearing shall be deemed waived.” Plaintiff argues that,
because defendants failed to file opposition to his motion for summary judgment, they
waived any objections to it. Further, defendants’ motion for summary judgment
“address[ed] what is in fact evidentiary objections” to plaintiff’s motion, so defendants’
motion for summary judgment should have been stricken.


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       As discussed previously, plaintiff’s motion for summary judgment was not served
with the statutorily required 75 days’ notice. Accordingly, defendants were not required
to respond to it, and their lack of opposition did not waive or forfeit their right to move
for summary judgment in their favor.
       Further, section 437c, subdivision (b)(5), provides that objections to evidence
submitted in support of or opposition to a motion for summary judgment must be made at
the hearing or they will be deemed waived. As discussed previously, however, plaintiff’s
motion for summary judgment presented no evidence. It was not accompanied by any
declarations. The separate statement referred only to the memorandum of points and
authorities and plaintiff’s pleading in support of the facts asserted. Neither is evidence
that may be relied on in support of the motion. (See § 437c, subd. (b)(1); Cassady, supra,
145 Cal.App.4th at p. 241; Cole, supra, 205 Cal.App.4th at p. 767, fn. 8.) Because
plaintiff presented no evidence in support of his motion, there were no evidentiary
objections to raise or to deem waived.
       Defendants’ lack of opposition to plaintiff’s motion did not bar defendants from
filing their own motion for summary judgment and presenting evidence demonstrating
that plaintiff’s claims were without merit. The trial court did not err in denying plaintiff’s
motion to strike defendants’ summary judgment motion.
IV.    Granting of Defendants’ Motion for Summary Judgment
       Plaintiff contends the trial court erroneously granted defendants’ motion for
summary judgment because defendants waived their evidentiary objections to plaintiff’s
motion for summary judgment and that prevented them from proceeding with their
motion. As we have determined, plaintiff’s motion for summary judgment was properly
denied; defendants did not waive any evidentiary objections, and there was nothing to
prevent defendants from moving for summary judgment.


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       Although the burden is on plaintiff, as the appellant, to demonstrate error in the
judgment (Yield Dynamics, supra, 154 Cal.App.4th at pp. 556-557), plaintiff has not
challenged the sufficiency of defendants’ showing in support of their motion. With their
motion, defendants presented a separate statement of undisputed material facts containing
71 statements of fact, each supported with a reference to supporting evidence. The
supporting evidence included declarations and medical records. Defendants’
memorandum of points and authorities discussed the legal authorities supporting their
contentions that they were entitled to judgment in their favor on plaintiff’s claims.
Plaintiff filed no opposition and did not attempt to raise a triable issue of material fact.
       Plaintiff asserts the trial court’s order granting defendants’ motion for summary
judgment denied him the equal protection of the law guaranteed by the Fourteenth
Amendment to the United States Constitution. “‘The Equal Protection Clause of the
Fourteenth Amendment commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws,” which is essentially a direction that all
persons similarly situated should be treated alike. [Citation.]’ [Citation.]” (People v.
Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 447.) “‘The first
prerequisite to a meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.’ [Citations.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253
(Cooley).)
       Plaintiff asserts he was denied equal protection because he, “an indigent petitioner,
was not provided the same equal terms as afforded the Counsel of the prestigious law
firm … who was representing the Defendant.” He claims the trial court violated state law
to grant defendants’ motion for summary judgment and to deny plaintiff’s. Plaintiff
contends an indigent petitioner is denied equal protection if he is denied review on equal
terms with other petitioners, solely because of his indigence.

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       Plaintiff has not shown that “‘the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner.’” (Cooley, supra, 29 Cal.4th at
p. 253.) He has not shown that he and defendants were similarly situated with respect to
the motions for summary judgment. Plaintiff’s motion set out facts he contended were
undisputed, but failed to present any supporting evidence. Defendants’ motion identified
facts they contended were undisputed, cited to the supporting evidence, which was
presented with the motion, and argued in a memorandum of points and authorities that
defendants were entitled to judgment. Plaintiff points to nothing in the record to indicate
the trial court treated the parties unequally because plaintiff was indigent.
       Plaintiff has not demonstrated any prejudicial error in the trial court’s grant of
summary judgment in favor of defendants.
                                      DISPOSITION
       The judgment is affirmed. Defendants are entitled to their costs on appeal.



                                                                 _____________________
                                                                              HILL, P. J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.
 




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