GARIBAY VS. HEMMAT
California Court of Appeal
Second Appellate District
Cite: 2008 DJDAR 4626

On April 3, 2008, the California Court of Appeals issued an opinion in Garibay v. Hemmat, detailing the evidentiary standards for a motion for summary judgment. (Garibay v. Hemmat, 2008 DJDAR 4626). Under Garibay, a motion for summary judgment must rely on admissible facts. Id. Otherwise expert witness declarations unsupported by admissible evidence fails to meet the moving party’s burden of production of evidence. Id.

In Garibay, plaintiffs brought a medical malpractice action against defendant doctor alleging the doctor recklessly and negligently failed to perform a tubal ligation, making it impossible for plaintiff to become pregnant. Id. at 4626. Defendant doctor denied liability and brought a summary judgment motion stating he complied with the standard of care. Id. The sole evidentiary basis for the motion was a declaration by defendant’s expert witness, Dr. Frumovitz, a Board-certified obstetrician and gynecologist, licensed to practice medicine in California. Id. at 4626-4627. The trial court granted defendant’s summary motion, basing its decision by agreeing with Dr. Frumovitz’s declaration that defendant met the applicable standard of care. Id. at 4627. The Court of Appeals reversed the decision, holding that the declaration based on a review of medical records was not sufficient to meet the burden of production of evidence required of a moving party for summary judgment. Id.

In order to prevail on a summary judgment motion the moving party has the burden to show the “nonexistence of any triable issue of material fact.” Id. (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850). This burden must be met by supporting affidavits, declarations, and other admissible evidence. Id. at 4627-2628. In addition, supporting affidavits or declarations must be made by a person with personal knowledge. Id.

However, in Garibay, the defendant’s motion was not supported by defendant’s own deposition testimony, declaration or any other admissible evidence. Id. at 4628. The only evidence submitted was testimony from Dr. Frumovitz, who did not have any personal knowledge of the facts surrounding the incident. Id. His declaration was based on his review of the medical records and an operative note by a doctor who performed the second bilateral tubal ligation on plaintiff Garibay. Id. Generally, medical records are hearsay and can only be admitted as evidence under the business records exception to the hearsay rule. The records must be properly authenticated and fall under Evidence Code §1271 to be admitted. Id.

Without proper authentication of the hospital records, Dr. Frumovitz’s declaration had no evidentiary basis. Id. Therefore, his medical opinion on whether defendant Hemmat met the standard of care had no evidentiary vaue. Id. Consequently, the summary motion lacked any evidentiary basis, meaning the defendant failed to meet his burden of production and his summary judgment motion must be denied even without opposing declarations. Id.

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