Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
The Defendant Failed to Meet Her Threshold Burden of Proving that She is Entitled to Summary Judgment
The Evidence Upon Which the Defendant Relies Has No Foundation
The defendant relies upon one piece of evidence to try to prove that she acted within the standard of care: Defense Exhibit E, a photocopy of a portion of a fetal monitor strip. The defendant’s lawyer also attached a document identified as Exhibit D, which she asserts is a portion of a fetal monitor strip. This document has all of the same evidentiary infirmities as Exhibit E, plus it is not relevant to any issue because it is not cited anywhere in the defendant’s Separate Statement.
The defendant’s Separate Statement shows that she relies solely on this document as proof that of her assertion that she acted quickly and timely, and within the standard of care. The document, however, has no foundation and is unauthenticated. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.
Two of the material facts in defendant Lee’s motion rely upon this unauthenticated document that her lawyer attempts to interpret and introduce into evidence. Material Facts 3, 4 and 5 rely upon alleged medical records that have no foundation. There is no declaration from a custodian of records showing that this document concerns Ms. Jackson or her baby. There is nothing on the document that is self-authenticating. There is handwriting on the document, but there is no identification of the author of the handwriting. There is no declaration or deposition testimony from anyone who purports to be the author. Further, the writings themselves are plainly handwritten, often illegible, and using a plethora of uncommon abbreviations.
A motion for summary judgment must be based on admissible evidence. C.C.P. § 437c(d). Authentication of a document is a preliminary fact upon which admissibility of a writing depends. Evid.C. § 400, 403(a). The burden of proof is upon the party offering the writing into evidence. Evid.C. § 403(a)(3). The defendant offers no evidence from any percipient witness, such as the author of the purported records or someone who saw them written, or from a custodian of records. In fact, the defendant has not attempted to use any of the recognized methods available to her to attempt to authenticate the writings upon which she relies in her motion for summary judgment. Evid.C. § 1410 et seq.
The testimony of the defendant’s lawyer is insufficient to lay a foundation for the writings which she plainly did not author or witness. Maltby v. Shook, 131 Cal.App.2d 349, 351 -352, 280 P. 2d 541, 542-543 (1955). The defense counsel has no personal knowledge about the creation of the writings. She was certainly not the author and does not claim to have witnessed their creation. She has no personal knowledge to interpret handwriting that is often illegible and apparently uses abbreviations. (See Part 9 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.