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Carr v. Wackenhut Corrections Corp.2/13/2002
judgment, no triable issue of fact exists regarding the defendant's compliance with the relevant standard of care, and judgment for the defendant must be affirmed. (See Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
Indeed, Carr failed to submit any competent evidence at all, expert or otherwise, in opposition to Wackenhut's motion for summary judgment. He submitted no declarations by any of the witnesses he claimed could corroborate his account of events, nor even a declaration of his own. By his own admission, he had not consulted a doctor or dentist regarding the care he received at TCI, and was not prepared to present expert testimony about it. And the two exhibits upon which he relied -- even apart from the fact they were hearsay, had not been authenticated, and were untimely and in the wrong form -- did not support even remotely the conclusions for which he offered them. In short, the evidence Wackenhut submitted in support of its motion for summary judgment was uncontradicted by Carr in any significant respect.
On appeal, we independently review the record before the trial court to determine whether the facts as shown by the parties give rise to a triable issue of material fact. (Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 251.) We accept as undisputed only those facts in the moving party's evidence as are uncontradicted by the opposing party's evidence. (Ibid.) When no evidence is presented in opposition to the motion, we may accept as true the facts alleged in the moving party's affidavits, if they are within the personal knowledge of the affiant and are facts to which he or she could testify competently. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589.) Here, the evidence submitted by Wackenhut was more than sufficient to defeat Carr's claim of deliberate indifference. At best, he established nothing more than a difference of opinion about the type of care he should have received. This is not enough to establish an Eighth Amendment violation. (Buckley v. Gomez, supra, 36 F.Supp.2d at p. 1225.)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs.
WE CONCUR:
Dibiaso, Acting P.J.
Harris, J.
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