Filed 3/29/24 Gael v. California Physicians’ Service CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MICHAEL GAEL et al.,

Plaintiffs and Appellants,

v.

CALIFORNIA PHYSICIANS’ 

SERVICE,

Defendant and Respondent.

 B327266

 Los Angeles County

 Super. Ct. No. 19TRCV00386

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Gary Y. Tanaka, Judge. Affirmed.

Law Office of Josiah Young, Josiah Young and Michael D. 

McClelland for Plaintiffs and Appellants.

Manatt, Phelps & Phillips, Ileana M. Hernandez, Craig S. 

Rutenberg and Joanna S. McCallum for Defendant and 

Respondent.

____________________

Two men were injured while visiting Costa Rica. They 

spent six days in a hospital there, then took an air ambulance to 
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a hospital in California. The ambulance company billed the 

men’s health insurance company, which denied coverage on the 

ground that the air ambulance was not medically necessary. The 

men and the ambulance company sued the insurance company. 

The trial court granted summary judgment for the insurance 

company. On appeal, the men and the ambulance company 

exclude pertinent documents from their record, do not cite 

evidence of a disputed fact, and raise new theories. We affirm.

We review an order granting summary judgment under the 

familiar standard. (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 843, 850–851, 860 (Aguilar).) We presume 

judgments are correct and appellants have the burden 

affirmatively to demonstrate error. (Claudio v. Regents of the 

University of California (2005) 134 Cal.App.4th 224, 230 & 252 

(Claudio).)

Although appellate courts independently review orders 

granting summary judgment (Aguilar, supra, 25 Cal.4th at p. 

860), the appellants have provided an insufficient record to do so. 

Appellants must furnish appellate records sufficient to consider 

the issues on appeal and our review is limited to matters in that 

record. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 

(Neilson).) The appellants excluded from the appellate record 

many pertinent documents, most notably the insurance 

company’s summary judgment motion and evidence and the 

appellants’ opposition evidence. We therefore presume the trial 

court correctly found the insurance company met its burdens.

The appellants have not identified a triable issue of fact. 

Appellants must identify a triable issue by citing the record. 

(Claudio, supra, 134 Cal.App.4th at p. 230; Cal. Rules of Court, 

rule 8.204(a)(1)(C) [briefs must support references to matters in 
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the record by citing the volume and page number where the 

matter appears].) Specifically, to establish a disputed fact, 

parties must point to evidence in the record. (Jackson v. County 

of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) The fact 

section of the appellants’ opening brief exclusively cites the 

unverified complaint rather than evidence. The appellants say 

they produced expert testimony that opposed the insurance 

company’s evidence and point to pages 446 to 456 of their 

appendix. These pages are not in the appendix. If they had been 

included, this single citation without an explanation of the 

supposed disputed fact would be insufficient. The appellants also 

cite pages 863 and 865 of their appendix to argue they presented 

evidence that established a disputed fact. Those are pages of the 

trial court’s ruling and are not evidence. The appellants fail to 

identify a triable issue of fact.

In their reply brief, the appellants blame the insurance 

company for “any issue with the record,” but this belated point is 

incorrect. The record is their burden. (Neilson, supra, 154 

Cal.App.4th at p. 1534.) The appellants complain the insurance 

company made an “unjustified and overbroad” request to seal 

records in the trial court. Their briefs do not attempt to explain 

this issue further. In the trial court, they did not file an 

opposition to the motion to seal and they skipped the hearing on 

it. On appeal, they have not provided redacted versions or sealed 

versions of the missing records. Nor have they moved to unseal 

records. (See Cal. Rules of Court, rule 8.46(f).) Their appendix 

also excludes nonsealed records, such as their own opposition 

evidence. It is unclear how the insurance company would be at 

fault for that omission. The insurance company’s submission of 

its own appendices, which the appellants never cite, is 
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inconsequential. These appendices do not change that the 

appellants provided an insufficient record and have not cited a 

triable issue of fact.

The appellants forfeited theories they failed to raise in the 

trial court. On appeal from a grant of summary judgment, we 

need not consider arguments or theories that plaintiffs did not 

advance in the trial court. (DiCola v. White Brothers Performance 

Products. Inc. (2008) 158 Cal.App.4th 666, 676.) The appellants 

argue the trial court erred by failing to apply the “prudent 

layperson standard.” They did not raise this theory in the trial 

court. They argue other new theories, including theories about a 

contractual provision being ambiguous and arguments about 

different statutory provisions, which they also forfeited. 

DISPOSITION

We affirm and award costs to California Physicians’ 

Service.

WILEY, J.

We concur: 

STRATTON, P. J. 

GRIMES, J.