Belton v. Spack CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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