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Hernandez v. California Hospital Medical Center2/23/2000
CERTIFIED FOR PUBLICATION
Plaintiff Jose Hernandez, the son of Manuel Hernandez, appeals from summary judgment granted to defendant California Hospital Medical Center (respondent) in this medical malpractice action. After review of the record, we reverse.
FACTS
This is a survival action brought by plaintiff to recover damages allegedly resulting from injuries received by his "over eighty years old" father during his hospitalization with respondent from December 7, 1996, through December 17, 1996.
The operative complaint, the third amended complaint, alleges that respondent was negligent in that it "failed to maintain adequate hygiene to prevent the formation of decubiti on the sacral and coccyx region of the patient, failed to provide repositioning of the patient frequently enough to provide sufficient relief of pressure to avoid the formation of sacral and/or coccyx bedsores on the patient, failed to assess the skin condition of the patient, failed to seek medical advice and orders from a physician to treat the sacral and/or coccyx decubiti of the patient when such decubiti began to develop and to worsen, and failed to take any steps to promote healing of such sacral and/or coccyx decubiti." It was also alleged that as a result of respondent's negligence, Manuel Hernandez "suffered serious sacral and coccyx . . . decubiti" and "required multiple surgeries to attempt to heal the aforesaid sacral and coccyx bedsores. . . ." Plaintiff sought special and general damages.
Respondent moved to strike portions of the complaint, and the trial court granted the motion in part, striking plaintiff's prayer for general damages.
Respondent moved for summary judgment on the ground that plaintiff could not establish any recoverable damages. The trial court granted summary judgment for respondent, finding that plaintiff "failed to provide any competent admissible [evidence] which raises any triable issue of material fact to show that any action or inaction by defendant . . . damaged decedent Manuel Hernandez." The court thereafter entered a judgment for respondent.
DISCUSSION
Plaintiff asserts error with regard to the trial court rulings granting the motion to strike and summary judgment.
1. The Motion to Strike
Plaintiff has chosen to perfect his appeal pursuant to California Rules of Court, rule 5.1 by providing us with his own appendix in lieu of a clerk's transcript. The appendix fails to provide us with a copy of respondent's motion to strike, any opposition filed by plaintiff, or the court's order granting the motion. Instead, he only includes in his appendix the notice of ruling. Appealed judgments and orders are presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, plaintiff has the burden of providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure to provide an adequate record on an issue requires that the issue be resolved against plaintiff. (Id. at pp. 1295-1296.) Without respondent's motion to strike, plaintiff's opposition, and the court's order, we cannot review the basis of the court's decision. Plaintiff has failed to carry his burden on this ruling.
2. The Motion for Summary Judgment
A summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers. In order for a defendant to prevail on summary judgment it has the burden of negating one essential element of the cause of action asserted or to establish an affirmative defense to the claim. In determining whether a defendant has carried
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