Green v. Hawkins CA3

Filed 6/3/15 Green v. Hawkins CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Amador) ----

RICHARD GREEN, C074918

Plaintiff and Appellant, (Super. Ct. No. 11-CV-7381)

v.

ROBERT HAWKINS,

Defendant and Respondent.

Plaintiff Richard Green appeals from the judgment in favor of defendant Robert Hawkins, M.D., which the trial court entered after granting the latter’s motion for summary judgment. The basis of the ruling was plaintiff’s failure to produce expert testimony in opposition to the motion on the standard of care in what is a medical malpractice action.

1

The record on appeal consists of a reporter’s transcript of an irrelevant hearing (at which plaintiff dismissed defendant Mule Creek State Prison from the case and the trial court overruled the demurrer of defendant Hawkins), and a clerk’s transcript containing a minute order reflecting that hearing, the minute order granting summary judgment, the judgment of dismissal, plaintiff’s notice of appeal (to which he attached a number of documents, which we cannot consider as part of the record on appeal because they are not copies of documents otherwise appearing in the record (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 700, p. 769)),1 and the register of actions.

Given the state of the record, we must affirm the judgment. We necessarily omit a separate summary of the factual and procedural background.

DISCUSSION

A judgment is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a result, it is an appellant’s fundamental burden to overcome this presumption with an affirmative demonstration of error; an appellant must accordingly provide a sufficient record to support any claim of error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324). Otherwise, the claim of error is forfeited and the trial court is affirmed. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Even though we exercise de novo review of a ruling on a summary judgment motion, the trial court is not a “potted plant” to be disregarded because our role is to review judicial rulings for error, not make a ruling in the first instance; thus, we will not consider evidence that was not presented to the trial court. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) Rather,