Details the three-step protocol for exposing Garibay foundation problems in defense expert declarations at California elder abuse MSJ: depose the expert to lock in the reliance list, demand all reliance materials, and file a properly formatted Rule 3.1354 objection paper.

The Discovery Protocol for Attacking Defense Expert Foundation in California Elder Abuse Cases

Defense's MSJ is built around an expert declaration opining that care met the standard. The expert reviewed medical records. If those records include materials from a co-defendant facility or third-party provider — materials not authenticated and submitted as business records with the motion — the declaration has a foundation problem. The discovery to expose that problem is one deposition and one production demand.

The defense move. Defense expert declarations at MSJ routinely rely on a consolidated medical record spanning multiple sources: the skilled nursing facility that is the moving defendant, the hospital that transferred the patient in, prior treating providers, co-defendant facilities. When the expert relies on records from sources other than the moving defendant, those records are not the moving defendant's business records. They are case-specific hearsay without a recognized foundation unless the originating entity separately authenticated them and submitted them with the motion. Under Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743, an expert's opinion has "no evidentiary value" when the underlying records are not admissibly before the court. Defense benefits from this rule going unnoticed: if plaintiff does not identify which records the expert relied on, does not verify which are properly authenticated, and does not object in the required form, the Garibay problem never reaches the court.

What the rulings show. In a 2026 Los Angeles County Superior Court MSJ ruling (No. 24VECV02670, 5/13/26), the moving defendant's expert declaration was struck on Garibay grounds because it relied on medical records created by a co-defendant facility. Those records were not submitted with the motion as authenticated business records from the entity that created them. With the expert declaration struck, the moving defendant had no admissible expert evidence to carry its initial burden on standard of care. MSJ was denied. The Garibay attack is particularly common in multi-defendant elder abuse cases where the moving defendant's expert reviews a consolidated record from multiple facilities — each facility is a different business entity, and the records of one are not the records of another for purposes of Evidence Code § 1271's business records exception.

Your best move. One deposition, one production demand, one checklist.

Depose the defense expert within 30 days of designation. The goal is a locked record of exactly what the expert reviewed. Ask: what specific documents, records, deposition transcripts, and other materials did the expert review in forming each opinion? For each document, who created it — the moving defendant or another entity? For each third-party or co-defendant record, did the expert verify its authenticity or rely on counsel's representation? Get the bates ranges. This deposition locks the foundation question before MSJ is filed. After the expert testifies about their reliance materials, plaintiff knows exactly which documents will need to be authenticated in the motion papers — and which will not be.
Demand production of all reliance materials. Serve a request for all documents, records, transcripts, and other materials the defense expert reviewed, considered, or relied upon in connection with the case, including all materials produced to the expert by counsel. Production before the MSJ is filed gives plaintiff the inventory needed to run the checklist when the motion arrives. When a reliance document does not appear as an authenticated exhibit in the moving papers, the checklist flags the problem.
Run the Garibay checklist when the motion arrives and file a Rule 3.1354 objection paper. For each document the expert references in the declaration: Is it attached to the motion as an authenticated business record? If not, and if the document originated from a co-defendant or third-party provider, the objection belongs in a separate Rule 3.1354 evidentiary objection paper filed concurrently with the opposition — not embedded in the UMF responses. The format: "Plaintiff objects to Declaration of [Expert], paragraphs [X-Y]: the expert's opinions in these paragraphs are inadmissible under Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 because they rest on medical records created by [co-defendant / non-party] not submitted with this motion as authenticated business records of the moving party." The opposition brief then argues the significance: if the objection is sustained and the declaration is excluded, defense has no expert evidence on standard of care or causation, the initial burden under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 was never met, and the motion fails before plaintiff's affirmative showing is considered.

This article is for educational purposes only and is not legal advice. All frameworks and sample language should be reviewed by a licensed attorney and adapted to your particular client, case, and situation.