Explains how to run a Garibay authentication audit when the California elder abuse MSJ arrives, identify which reliance documents are not properly authenticated, and file the Rule 3.1354 objection that can sink the defense expert declaration and defeat the entire motion.

When the Defense Expert's Foundation Fails: The Garibay Attack in California Elder Abuse MSJ

Every defense MSJ in an elder abuse case is built around an expert declaration. Defense retained a medical expert, the expert reviewed the chart, and the expert opined that the care was within the standard of care. From our review of California elder abuse MSJ practice, the foundational question is almost never asked: did the expert's opinions rest on records that are actually before the court as authenticated evidence?

The defense move. Defense's expert declaration is the engine of the motion. Without it, defense usually cannot carry its initial burden on standard of care or causation. The expert reviewed everything — nursing notes, care plans, specialist reports, hospital records, transfer summaries. The declaration summarizes what those records show and opines that the facility's care was appropriate. What defense rarely does carefully is ensure that every record the expert reviewed is submitted as a properly authenticated business record. In multi-defendant cases especially, the expert reviews a consolidated record assembled from multiple facilities. The moving defendant authenticates its own records. Records from co-defendants, prior facilities, and treating hospitals get included without their own foundation. That's the opening.

What the rulings show. In a 2026 Los Angeles County Superior Court ruling (No. 24VECV02670, 5/13/26), the moving defendant's retained medical expert relied on medical records created by a co-defendant facility — not the moving defendant. Those records were not submitted with the motion as authenticated business records from the entity that created them. The expert declaration was struck on Garibay v. Hemmat (2008) 161 Cal.App.4th 735 grounds: an expert's opinion based on case-specific hearsay has "no evidentiary value" unless the underlying records are properly before the court. With the declaration struck, the moving defendant had no evidence to support its initial burden. The motion was denied.

The business records exception under Evidence Code § 1271 provides the usual authentication path. For the moving defendant's own records, that's typically fine. The trap is records from anyone else. Co-defendant records. Hospital records from the admission before or after the facility stay. Third-party specialist notes. None of those are the moving defendant's business records. Each needs a § 1561 records custodian declaration from the entity that created them, attached to the motion. If it isn't there, the expert's opinions based on those records have no evidentiary value.

Your best move. Three steps, starting before the motion is filed.

Depose the defense expert within 30 days of designation and lock in the reliance list. Get the specific list of materials the expert reviewed — document type, facility, and bates range. This is the checklist you run when the motion arrives. Defense experts often review far more than the moving defendant's own records; locking that down at deposition prevents defense from narrowing the list later.
Run the authentication audit the day the motion lands. For every document on the expert's reliance list, verify whether it appears in the moving papers as an authenticated business record. Any record from a source outside the moving defendant's own chart gets flagged. If the co-defendant's hospital records are on the expert's list but there's no § 1561 custodian declaration from the hospital in the moving papers, you have a Garibay objection.
File the objection as a separate Rule 3.1354 paper — not embedded in the brief. Cal. Rules of Court 3.1354 requires evidentiary objections in summary judgment proceedings to be filed as a separate document. Identify the specific paragraphs of the expert declaration that rely on unauthenticated records. Request exclusion of those paragraphs. If the court sustains the objection as to the opinions defense needs to carry its initial burden, your argument is that the burden never shifted under Aguilar: without admissible expert evidence on standard of care, defense has not made its prima facie showing, and the motion fails before plaintiff needs to produce a single piece of opposition evidence.

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.