Daniel Gonzalez v. United States ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL GONZALEZ, No. 19-16935
Plaintiff-Appellant, D.C. No. 2:15-cv-01997-MCE-DB
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
VETERANS ADMINISTRATION, a U.S.
Government Agency; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Daniel Gonzalez appeals pro se from the district court’s summary judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in his Federal Tort Claims Act (“FTCA”) action arising from his medical treatment
at a Department of Veterans Affairs hospital in California. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Sandoval v. County of Sonoma, 912
F.3d 509, 515 (9th Cir. 2018). We affirm.
The district court properly granted summary judgment because Gonzalez
failed to submit expert medical evidence to support his medical malpractice claim
as required under California law. See Conrad v. United States, 447 F.3d 760, 767
(9th Cir. 2006) (FTCA actions are governed by the substantive law of the state in
which the alleged tort occurred); Powell v. Kleinman, 59 Cal. Rptr. 3d 618, 626
(Ct. App. 2007) (“Whenever the plaintiff claims negligence in the medical context,
the plaintiff must present evidence from an expert that the defendant breached his
or her duty to the plaintiff and that the breach caused the injury to the plaintiff.”);
Johnson v. Superior Court, 49 Cal. Rptr. 3d 52, 58 (Ct. App. 2006) (elements of
medical malpractice claim under California law).
Contrary to Gonzalez’s contention, defendant United States was not required
to submit evidence to prevail in its motion for summary judgment. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (a Rule 56(c) motion may be granted
“regardless of whether the moving party accompanies its summary judgment
motion with affidavits”).
2 19-16935
All pending motions and requests are denied.
AFFIRMED.
3 19-16935