Opinion
A165037
08-10-2023
RAYMOND VINCENT DIGIACOMO, JR. Plaintiff and Appellant, v. HEALTHRIGHT 360, et al., Defendants and Respondents
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-20-584572
Richman, J.
Representing himself, Raymond DiGiacomo sued his former healthcare provider and a related foundation alleging four causes of action, for negligence, negligence per se, defamation, and unfair business practices. Defendants moved for summary judgment, which the trial court granted, concluding that none of DiGiacomo's claims had merit, a conclusion based in part because DiGiacomo failed to provide expert testimony.
Still representing himself, DiGiacomo appeals, appealing only the rulings on his negligence-based claims, which appeal has four arguments: (1) defendants' expert declarations lacked support; (2) opposing expert declarations were not required; (3) the matter cannot be decided on summary judgment; and (4) the trial court should have appointed an expert. We conclude that none of the arguments has merit, and we affirm.
BACKGROUND
The Proceedings Below
On May 29, 2020, representing himself, DiGiacomo (hereafter, for consistency with the briefing, appellant) filed a complaint, followed by an amended complaint, the operative complaint here. The amended complaint named two defendants, HealthRight 360 (HR360) and HealthRight 360 Foundation (Foundation), respectively alleged to be appellant's "former healthcare provider and . . . an entity which [appellant] believes to be financially linked to HR360." The amended complaint alleged four causes for action, for: (1) negligence, (2) negligence per se, (3) defamation per se, and (4) unfair business practices.
As to the essence of his claims, the amended complaint had some five-pages-containing 18 paragraphs-of "allegations common to all causes of action," allegations that included claims such as scheduling errors, grievances appellant filed (which he claims led him to develop injury and/or paranoia because the responses were not a quick as he wanted) and "ongoing negative patient experience[s]," experiences appellant's brief describes this way:
"Generally speaking, the gist of this suit pertains to the fact that Appellant (and other patients of HR360) together endured various challenges while under the care of said provider, before Appellant eventually brought his grievances to Respondents' middle management team, and then finally to HR360's CEO Ms. Vitka Eisen herself, only to then be ignored by all aforementioned managerial layers, including Eisen, and even after Appellant mentioned to Eisen that she in particular was causing him harm via her personal failure to reasonably address his concerns in any fashion whatsoever. . . [¶]. . . [¶] [S]aid abovementioned challenges unfortunately caused Appellant to become uncomfortable enough with HR360 to delay seeking treatment for his health issues, in where said delays then caused him what now appears to be permanent physical damage to the bottom of his left foot, all in addition to the less visible emotional injuries he still experiences to this day, even a staggering four (4) years of time has passed since said physical injuries' initial onset.
"In addition, during the timeframe Appellant was under . . . HR360's care, he was also uniquely challenged in seeking an alternative provider due to the fact that HR360 was in the process of amending the reasonable accommodation ('RA') document it had previously created for him, so that he could then thereafter utilize said amended document to request an RA from his master tenant, Tenderloin Housing Clinic, Inc. ('THC'), as said THC had stated to Appellant that HR360's original RA documentation was otherwise designed improperly.
"Even further, HR360 had also previously installed an alloy style dental crown into Appellant's mouth, when the vast majority of other Medicaid-accepting dental clinics operating in the San Francisco locality solely offered the more medically-inferior steel style crown to their patients. As such, leaving HR360 to establish care from a different provider would have indeed posed a potential hardship on Appellant in that regard as well." (Fns. omitted.)
On January 27, 2021, the case was set for jury trial on January 18, 2022.
On August 18, defendants filed the operative answer, their third amended answer.
The amended answers appear to be a result of appellant having filed several demurrers to, and motions to strike, earlier answers.
The next month, defendants filed a motion for summary judgment or, in the alternative, summary adjudication. The motion sought adjudication of six separate issues, the first three on the negligence based-claims, the fourth and fifth on the defamation claim, and the sixth on the unfair business practices claim. The motion was accompanied by a memorandum of points and authorities, a 61-page separate statement, supporting exhibits, and three declarations, of: (1) Darin Flagg, one of defendants' attorneys, who authenticated various documents; (2) Brian Jacks, a board certified psychiatrist since 1974, and a professor of psychology at the University of Southern California since 1995; and (3) Randy Farber, president of Farber Consulting Group, an independent healthcare consulting firm, with 40 years of experience in the healthcare industry, whose declaration is, as discussed below, particularly significant to the issues here.
On November 1, appellant filed a motion for continuance of trial. Defendants filed opposition, appellant a reply, and on December 2, the trial court (the Honorable Samuel Feng) denied the motion.
Meanwhile, while the briefing on appellant's motion to continue was occurring, on November 22, appellant filed a motion to amend his complaint. In appellant's words, the motion sought to "A) join Defendant HealthRight 360's founder and chief executive officer, Ms. Vitka L. Eisen, into this action as a new party defendant; B) to add a new cause of action for Breach of Contract against . . . HealthRight 360; and C) to subdivide his existing Negligence claim into both expert- and layman-focused counts."
On December 6, defendants filed their opposition to the motion to amend, and on December 10, appellant filed his reply.
Meanwhile, on December 3, appellant filed his opposition to defendant's motion for summary judgment/adjudication. The opposition included a separate statement, 238 pages of exhibits, appellant's declaration, and objections to defendants' evidence.
Defendants filed their reply, and the motion was set for hearing on December 23, prior to which the trial court (the Honorable Ethan Schulman) had issued a tentative ruling granting the motion. The tentative ruling was not contested, and on December 23, Judge Schulman entered his order granting summary judgment, which order held that "1. Defendants' (HealthRight 360 and HealthRight 360 Foundation)'s Motion for summary judgment is granted." And concerning appellant's negligence-based claims- the only claims he contests on appeal-Judge Schulman ruled as follows:
"The Court grants summary adjudication on issue 2 (standard of care) and denies as to issue 1 (damages) and issue 3 (statutory violations) as moot. Plaintiff cannot establish the negligence and negligence per se causes of action. Code of Civil Procedure section 340.5[, subdivision] (2) broadly defines professional negligence as 'a negligent act of omission by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed ....' [(Code Civ. Proc., § 3405., subd. (2).)] 'The term "professional negligence" encompasses actions in which "the injury for which damages are sought is directly related to 'a matter that is an ordinary and usual part of medical services provided by the health care provider" or directly related to "a matter that is ordinary and usual part of medical professional services.["] "[C]ourts have broadly construed 'professional negligence' to mean negligence occurring during the rendering of services for which the health care provider is licensed."' (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297; see also Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 406-407 [EMT's operation of ambulance qualifies as professional negligence].) Plaintiff's claims relate to the timing and scheduling of medical appointments, Defendants' alleged use of certain needles to draw blood from patients, and other issues relating to what he alleges was his 'ongoing negative patient experience' with Defendants. [Citation.] This action does not raise issues within the common knowledge of laypersons. The allegations against defendants sound in professional negligence and expert testimony is necessary to establish the standard of care. (See Stephenson v. Kaiser Foundation Hospitals (1962) 203 Cal.App.2d 631, 635; Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th 992, 1001.) The undisputed evidence demonstrates that defendants met the standard of care and plaintiff fails to proffer any contravening evidence. [Citations.] Therefore, plaintiff cannot establish his first two causes of action. The Court notes that plaintiff's claims under Health and Safety Code section 123111 is not cognizable because there are no allegations that plaintiff provided 'a written addendum' to defendants. [Citation.] (See Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.)"
The order went on to grant summary adjudication as to the defamation and unfair competition claims, issues appellant does not contest here. And that same day Judge Schulman filed his order denying appellant's motion to amend.
On March 25, appellant filed a notice of appeal.
DISCUSSION
Introduction, and Some Observations About Appellant's Brief
Appellant has submitted a 21-page Amended Opening Brief, whose table of contents reads as follows:
"TABLE OF AUTHORITIES 4
"STATEMENT OF THE CASE AND FACTS 6
"PROCEDURAL HISTORY 9
"STATEMENT OF APPEALABILITY 10
"STANDARD OF REVIEW 10
"ARGUMENT
"I. Respondents' expert declarations lacked support. 11
"II. Expert declarations were not required. 15
"III. This matter cannot be decided on summary judgment. 17
"IV. The trial court should have appointed an expert. 18
"CONCLUSION AND PRAYER 19.”
We begin by noting that appellant's brief violates many principles of appellate review, a criticism we make against the background that appellant has chosen to represent himself on appeal, as is his right. In doing so, however, he is held to the same standard as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Self-representation is not a ground for lenient treatment and, as is the case with attorneys, a person who represents himself "must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
We begin with appellant's statement of appealability, where appellant asserts that this appeal is from an "order granting . . . summary judgment, and is authorized by Code Civ. Proc., § 904.1(a)(1)." That section does not apply, as an order granting summary judgment is not appealable, only the judgment following the order. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14.) That said, we have the discretion to decide the case on the merits, including, for example, by "deeming" the order to incorporate a judgment and treat the appeal as taken from the judgment. (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 820.) And that we will do.
Appellant's "statement of the case" begins with a narrative describing, for example, the "core nature" of HealthRight's business model, its clients, and their claimed susceptibility to injury. None of this has any citation to the record (see Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970; California Rules of Court, rule 8.204(a)(1)(C))-not to mention any relevance to the issues before us.
And while the index refers to "statement of case" and "facts," no actual "facts" are set forth in that section of the brief. California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief shall "[p]rovide a summary of the significant facts ...." And the leading California appellate practice guide instructs about this: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [Citation.] [¶] Misstatements, misrepresentations, and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments ...." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶ 9:27, italics omitted.)
Summary Judgment and the Standard of Review
"A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit ...." (Code Civ. Proc., § 437c, subd. (a)(1) (Section 437c).) And summary judgment will be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Section 437c, subd. (c).)
A defendant "moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) And to prevail, a defendant must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to it. (Aguilar, supra, 25 Cal.4th at p. 849; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
We review a "grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]" (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims. (Romano v. Rockwell Internat., Inc., (1996) 14 Cal.4th 479, 487.) As we put it in Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: "[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff's theories and establishing that the action was without merit." (Accord, Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
"We accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67), and we "view the evidence in the light most favorable to plaintiff[] as the losing part[y]." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253-254.)
In addition to the above is the well-recognized admonition, set forth, for example, in Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230 this way: "On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) . . . '[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.' (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)"
Appellant has not even attempted to meet the requirement set forth in cases such as Claudio. Nor could he, as Judge Schulman got it right.
The Declaration Supporting the Motion Was Properly Admitted
As noted, in the index in his brief appellant's first argument is "respondents' expert declarations lacked support." In the text of his brief, appellant's "Argument I" reads: "Within their declarations, Respondents' medical experts, Mr. Randy Farber and Mr. Brian Jacks, both failed to adequately explain the relevant standards of care within the meaning of McAlpine." The argument proceeds for some four pages, much of which includes argument why McAlpine v. Norman (2020) 51 Cal.App.5th 933 (McAlpine)-which appellant describes as "virtually identical"-applies. McAlpine not only does not help appellant, an objective reading of that case supports the admissibility here.
But before demonstrating why, we begin with a critical principle of appellate review, the standard of review applicable to a trial court's ruling on the admissibility of expert testimony. That standard is abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 753; Strobel v. Johnson &Johnson (2021) 70 Cal.App.5th 796, 816.) Appellant has not even attempted to demonstrate such abuse. And we certainly find none, especially as the declarations were admissible, as McAlpine itself would hold.
McAlpine, an action for medical malpractice, reversed a summary judgment for defendant, concluding that the expert opinion that defendant submitted was "unsupported by factual detail or reasoned explanation...." (McAlpine, supra, 51 Cal.App.5th at p. 935.) There, the expert testified that based on his review of the medical records, defendant was not negligent and was "within the standard of care at all times." (Id. at p. 939.) The court went on to describe cases, including from that very court, which held that "the bare conclusions of the defendants' experts, unsupported by reasoning or explanations" was insufficient to show defendants acted within the standard of care. (Id. at p. 940.) That hardly describes the declarations here, as discussion of Farber's declaration demonstrates.
Farber's declaration is 12 pages long, with 20 paragraphs, a declaration that comprehensively addresses issues of potential liability and provides a reasoned explanation connecting the underlying facts to his conclusion that defendants met the standard of case. By way of background, Farber testified, he is "the President of Farber Consulting Group, Inc., an independent health care consulting firm providing practice analysis, contracting, staff development, forensic analysis relating to organizational standard of care, and project management services to a broad spectrum of health care companies ranging from Fortune 500 enterprises to individual physician practices. [He has] almost forty years of extensive experience in consulting, overseeing and guiding clinical and operational management, claims, and financial management of numerous health care organizations and practice groups. In addition, [he has] taught graduate programs in Health Administration and [has] an extensive knowledge of the issues surrounding operating health care organizations, addressing claims, and analyzing organizational operations of such entities to determine appropriate and effective management and resolution techniques."
Based on that, Farber testified that he is "generally familiar with the standards of care in the medical care provider industry, particularly with respect to the operations, administration, handling of claims, patient/client interface, and essentially the very types of matters at issue in the Plaintiff's operative Complaint. Based upon my education, training, experience, and my review of the records and files in this case, I could and would competently testify as set forth in this Declaration." As indeed he could. And did.
Farber reviewed voluminous documents, including appellant's complaint, his written discovery responses, materials he produced, his deposition testimony (and exhibits), and his grievances, complaints, and letters. Based on that review, Farber recited a number of facts, in twelve separate paragraphs of his declaration, that directly correspond to the facts cited in support of the summary judgment motion-facts, not incidentally, undisputed by appellant. And following all that, Farber testified to his ultimate conclusion, a conclusion that, in the language of McAlpine, was supported by "reasonable explanation."
That is, using his background, training, and expertise, and based on the material, undisputed facts, Farber testified to this thorough conclusion: "Viewing all of the information together, and based upon my background, training, experience, and upon my extensive review of the records provided, it is my opinion that defendants HealthRight 360 and HealthRight 360 Foundation have satisfied the standard of care in relation to their obligations and responsibilities to Plaintiff Raymond DiGiacomo. Even though there is evidence that Plaintiff failed to properly submit his Grievances pursuant to the Defendants' grievance policies and procedures, I am assuming for purposes of this opinion that Plaintiff did properly submit them and opining on that basis. In my opinion, the Defendants did not at any time breach the standard of care and acted appropriately with respect to their responsibilities and obligations to Plaintiff. Moreover, while not the only factor considered, it is important that Plaintiff submitted a complaint against the Defendants to his health insurance carrier, Anthem Blue Cross, complaining to Anthem about Defendants' conduct toward him as a patient. According to Anthem's November 13, 2019 Resolution of Grievance letter to Plaintiff (attached as Exhibit B to Plaintiff's operative Complaint), Anthem wrote to the Defendants asking for a response to Plaintiff's concerns. According to the November 13, 2019 letter, Defendants responded to Anthem's information request. The letter goes on to say that if needed, Anthem would take action to correct any problems. There is no documentation to indicate that Anthem needed to take further action, and the absence of such documentation confirms that Anthem deemed that no further action was warranted. Thus, while there may have been minor errors with respect to appointment dates, and while Plaintiff may have negatively viewed some of his in-person interactions with certain HealthRight personnel, in my opinion, such factors do not rise to the level of a breach of the standard of care."
That is hardly a "bare statement," the description in McAlpine, supra, 51 Cal.App.5th at page 940. It is clearly admissible.
Expert Testimony Was Required
Appellant's second argument is that "an expert witness declaration was not required pursuant to common law."
Code of Civil Procedure section 340.5, subdivision (2) defines professional negligence as "a negligent act or omission by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed ...." "The term 'professional negligence' encompasses actions in which 'the injury for which damages are sought is directly related to the professional services provided by the health care provider' or directly related to 'a matter that is an ordinary and usual part of medical professional services.'" (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297.)
Paragraph 32 of appellant's complaint alleges among other things that defendants were negligent by: failing to correct mistakes regarding appellant's request for accommodation; failing to address two grievances; failing to address appellant's suggestion note; failing to address appellant's written correspondence; and scheduling a psychiatry follow up three months after appellant's psychiatry visit. As Judge Schulman expressly noted, citing several cases, "This action does not raise issues within the common knowledge of laypersons. The allegations against defendants sound in professional negligence and expert testimony is necessary to establish the standard of care. [Citations.]"
Citing Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal.App.5th 637, 646 (Ryan), appellant states "As provided by Ryan, '[HR360 CEO Ms. Vitka Eisen] simply chose to remain silent, collect [her $350K government-funded salary], and allow [Appellant DiGiacomo] to deal with the consequences. In short, the conduct required by the circumstances presented here is within the common knowledge of a layman. [Citation.] [¶] Put simply, CEO Eisen's conduct toward Appellant was degenerate in nature, and thus did not require the services of an expert witness ...."
Beyond that, appellant goes on to assert that "HR360's lack of responsiveness to Appellant's grievances was also indeed that of a contract violation, as HR360 did not respond within the agreed upon five (5) day timeframe. [Citations.] [¶] In addition, . . . an act that constitutes a breach of contract may also be tortious. [Citations.]"
Appellant's brief asserts in its "Relevant Procedural History" that on July 29, 2022, after his appeal was filed, appellant "filed a new Breach of Contract suit against the respondents as a result of the trial court's aforementioned denial of Appellant's motion to amend. Said new suit also includes an additional cause of action for HR360's fraudulent destruction [of] Appellant's HR360 medical records, in where said destruction occurred during the instant matter's discovery period. (S.F. Superior Court Case No. CGC-22-601012, not designated on the instant record.)"
This, too, is inappropriate. As to Eisen, she was not a party to the lawsuit, appellant having been unsuccessful in his motion to amend to add her. Similarly, he was unsuccessful in adding a breach of contract claim, so any reference to such a claim was not required here. The pleadings serve as the "outer measure of materiality" in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of California Life &Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 ["the pleadings determine the scope of relevant issues on a summary judgment motion'].)
Secondary Assumption of Risk Does Not Apply
Appellant's third argument, 11 lines in length, is that "This legal matter sounds in the Secondary Assumption of Risk doctrine, and thus cannot be decided on Summary Judgment." The argument reads in its entirety as follows:
"As stated above, Appellant was unduly challenged in leaving HR360's care, as said Respondent was in the process of completing a reasonable accommodation ('RA') modification for Appellant so that he would then provide the RA to his master tenant, THC. In addition, HR360's dental clinic had also provided Appellant an alloy dental crown, in where most Medicaidaccepting clinics in Appellant's locality rather tended to provide the more inferior steel-type crown to their patients. [Citation.] [¶] "Put simply, Appellant's knowing acceptance of the risk in continuing to pursue medical treatment from HR360 notwithstanding said provider's nefarious conduct thus places the instant legal matter into the realm of the Secondary Assumption of Risk doctrine, also as explained to the trial court. [Citation.] [¶] "As such, and as Sanchez provides, the instant matter indeed cannot be decided on summary judgment. (Sanchez v. Hillerich &Bradsby Co. (2002) 104 Cal.App.4th 703, 715 [(Sanchez)]."
Sanchez involved a baseball game where plaintiff, a pitcher, was struck by a line-drive hit by an aluminum bat and whether plaintiff assumed the risk. It has no applicability here. But beyond that, appellant made no assumption of risk argument in the trial court, and Judge Schulman did not rule upon such argument or base his ruling upon such theory.
The Trial Court Did Not Err in Not Appointing an Expert
Appellant's final argument is that the "trial court should have appointed an expert witness for Appellant, pursuant to statute." The statute referred to is Evidence Code section 730, which provides as follows: "When it appears to the court, at any time before or during the trial of an action, that evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter to which the expert evidence is or may be required ...."
We begin by noting that with the use of the word "may," the rule is "that a trial court has discretion in the appointment and selection of expert witnesses." (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 833; accord, People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.) Once again, appellant has not attempted to demonstrate, much less demonstrated, any such abuse.
This may not be surprising, as the primary problem with appellant's argument is that he never requested, in either the opposition to the motion for summary judgment or in a separately filed motion, that an expert be appointed on his behalf.
As acknowledged in appellant's brief, he asked for the appointment of an expert only in his motions to continue the trial and to amend.
Pointing to the fact that he had a fee waiver, appellant asserts that, "As such, the trial court's failure to appoint a medical expert to assist Appellant with his competing declaration, or to at least request that a local medical expert provide a cursory review of Appellant's accusations against HR360, indeed appears to be both that of a Due Process and Equal Protection violation.... [¶] In addition, Evid[ence] Code [sections] 730 and 731[, subdivision] (b) together provide that a Court may appoint an expert witness to assist a litigant, even if the Court itself does not require an expert to adjudicate the issue at hand, and that, in such a scenario, the fee of said expert need not be paid by the trial court, and can rather be paid out of the County Treasury."
Evidence Code section 731 deals with how a court-appointed expert is compensated.
Appellant cites nothing about a fee waiver that supports him. And we see no violation of due process or equal protection.
DISPOSITION
The order, which we deem to include a judgment, is affirmed. Defendants shall recover their costs on appeal.
We concur: Stewart, P.J., Millar, J.