Bauman v. Thrifty Payless CA4/1 ( 2020 )

Filed 9/1/20 Bauman v. Thrifty Payless CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JORDANA BAUMAN, D075900
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00096614-
CU-NP-CTL)
THRIFTY PAYLESS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E.L. Strauss, Judge. Affirmed.
Jordana Bauman, in pro. per., for Plaintiff and Appellant.
Grimm, Vranjes & Greer, Gregory D. Stephan and Nima D. Shull for
Defendant and Respondent.
In this personal injury action originally filed in 2011, self-represented
plaintiff Jordana Bauman appeals a judgment entered after the trial court
granted defendant Thrifty Payless, Inc.’s (Thrifty) motion for summary
judgment. The motion was granted after the court deemed admitted certain
crucial facts that were the subject of requests for admission Bauman failed to
respond to. Bauman also did not respond to the summary judgment motion.
On appeal she does not directly challenge either of these rulings. Instead,
she seeks to contest various actions by the trial judge over the course of the
litigation that she claims contributed to the ultimate result. Finding no
merit to her arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2011 Bauman filed a personal injury complaint against
Thrifty based on injuries she sustained in a fall at the Rite Aid drug store
owned and operated by Thrifty. The case was assigned to Judge Richard
E. L. Strauss for all purposes. Roughly one month later, Bauman filed for
protection under chapter 13 of the federal Bankruptcy Act. (11 U.S.C. § 1301
et seq.) Informed of this in January 2012, Judge Strauss stayed the state
court action.
The initial stay remained in effect until June 2014. At that point,
Judge Strauss lifted the stay and set a case management conference for
September. Prior to that conference however, Bauman requested and the
court granted an ex parte stay of discovery in the case as to her personally,
setting a series of status conferences that were continued over the course of
the next 12 months. Finally in October 2015, the case was deemed at issue,
the discovery stay was lifted, and trial was set for May 2016.
The parties were engaged in disputes over discovery when, in January
2016, Bauman filed a new chapter 13 bankruptcy petition. Judge Strauss
again ordered the state court action stayed and set a status conference for
April, which was continued on successive occasions for nearly two and a half
years. In the meantime, in May 2016 Bauman filed a peremptory challenge
directed to Judge Strauss, which he summarily denied. (See Code Civ. Proc.,
§ 170.6.)
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On July 20, 2018, the bankruptcy court denied Bauman’s motion to
extend the automatic stay, which had expired on June 11. At the superior
court status conference on September 28, Judge Strauss found there was no
longer any automatic stay as a result of the bankruptcy action. Accordingly,
he ordered Thrifty to re-serve Bauman with the discovery motions that were
originally filed in January 2016 and set a hearing on the motions for
November 2, 2018.
Bauman filed no timely opposition to Thrifty’s discovery motions, which
included various motions to compel as well as a request to deem certain facts
admitted based on Bauman’s failure to respond to requests for admission.
Instead, on the date set for the hearing, she filed an “objection” to the
motions along with a request for a continuance “as a special accommodation”
pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101
et seq.) and California Rules of Court, rule 1.100.1 Among other things, she
claimed to be a “disabled” litigant who required extra time to respond. The
court denied the objection and request as untimely and granted the
unopposed discovery motions. It also imposed sanctions of $600 against
Bauman in conjunction with the motions to compel.
Thrifty then filed a motion for summary judgment based on the fact
that Bauman’s “judicially deemed admissions establish that [she] cannot
establish the elements of the causes of action alleged in her Complaint.”
Again, Bauman filed no timely opposition and the court granted Thrifty’s
unopposed motion. Judgment was entered accordingly.
1 All subsequent rule references are to the California Rules of Court.
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DISCUSSION
Sensitive to the challenges faced by self-represented litigants on
appeal, we nonetheless summarize some basic rules of the appellate process.
We start with a presumption that the judgment or order being appealed is
correct. (E.g., Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal. 4th
424, 443.) It is the appellant’s burden to show the contrary. (In re Marriage
of Gray (2002) 103 Cal. App. 4th 974, 978.) To demonstrate error, the
appellant’s brief must present a coherent statement of the relevant facts
supported by appropriate citations to the record. (Nielsen v. Gibson (2009)
178 Cal. App. 4th 318, 324; Boeken v. Philip Morris, Inc. (2005) 127
Cal. App. 4th 1640, 1658; Rule 8.204(a)(1)(C).) The brief must also clearly
articulate the appellant’s legal arguments, accompanied by authority to
support them. (Rule 8.204(a)(1)(B); McComber v. Wells (1999) 72 Cal. App. 4th
512, 522.) As a corollary of these principles, it is the appellant’s additional
obligation to provide the court with a complete record of the relevant
proceedings sufficient to support any claims of error. (E.g., Maria P. v.
Riles (1987) 43 Cal. 3d 1281, 1295.)
In this case, Bauman’s opening brief begins with a five-page statement
of “background facts” that includes not a single citation to the record.
Instead, it reads as a personal narrative of what Bauman thinks the case is
about. The argument that follows bounces between several different ways in
which Bauman believes the trial court mishandled the case, only occasionally
supported by any legal authority and almost never connected to explaining
why the court erred in granting the motion for summary judgment.
As best as we can discern, Bauman’s arguments fall into three
categories. She asserts: (1) as a result of the various bankruptcy stays, the
trial court had no jurisdiction to schedule repeated status conferences during
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the period between March 2014 and September 2018; (2) the court should
have disqualified itself for bias and, in any event, mishandled the
disqualification motion she filed; and (3) the court abused its discretion by
denying her motions to stay or continue proceedings due to her disability. We
address each set of arguments in turn. Finally, we explain why several
additional contentions made by Bauman for the first time in her reply brief
cannot be considered and, in any event, lack merit.
1. Status Conferences During a Pending Bankruptcy
Bauman’s action was effectively stayed between March 14, 2014 and
October 30, 2015, and then again between January 25, 2016 and June 11,
2018. Bauman was not required to respond to discovery during these periods.
On September 28, 2018 when it determined there was no longer any
bankruptcy stay in effect, the court required Thrifty to re-serve Bauman with
all outstanding discovery motions. It was Bauman’s failure to respond to
discovery requests served on her in November 2015—and in particular the
requests for admission—that led to the court deeming certain critical facts
admitted, and ultimately to the ruling granting Thrifty’s motion for summary
judgment.
Bauman does not challenge the court’s finding that as of June 11, 2018,
there was no longer any operative bankruptcy stay. Instead she complains
she was “harass[ed]” by the trial court, which required her “to appear at all
status conferences,” typically scheduled once every six months, so that Judge
Strauss could be updated on the status of the bankruptcy proceedings.
According to Bauman, the court should have “just stopp[ed] everything until
the defendant [wa]s able to report there are no more bankruptcies.”
As a preliminary matter, it is not at all clear that Bauman’s state court
action in which she appeared as a plaintiff was stayed by the filing of a
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bankruptcy petition. “California decisional authority holds, based on the
plain language of [11 U.S.C.] section 362(a)(1), the automatic stay is
inapplicable to superior court actions initiated by the debtor.” (Shah v.
Glendale Federal Bank (1996) 44 Cal. App. 4th 1371, 1375.) Bauman responds
that a personal injury claim belongs to the estate and a debtor-plaintiff has
no standing under federal law unless and until the bankruptcy trustee
abandons the particular claim. Although Bauman might be correct as to a
chapter 7 petitioner (see Haley v. Dow Lewis Motors, Inc. (1999) 72
Cal. App. 4th 497, 511),2 a chapter 13 debtor would appear to have standing to
prosecute an action as a plaintiff. (See, e.g., Smith v. Experian Information
Solutions, Inc. (N.D.Cal., Apr. 26, 2017, No. 16-cv-04651-BLF) 2017 U.S. Dist.
Lexis 63548, *24‒*25; Foronda v. Wells Fargo Home Mortgage, Inc. (N.D.Cal.,
Nov. 26, 2014, No. 14-CV-03513-LHK) 2014 U.S. Dist. Lexis 165676,
*10‒*11.)
In any event, Bauman cites no authority for the proposition that an
automatic bankruptcy stay precludes a state court from conducting periodic
conferences simply to ascertain the status of the bankruptcy proceedings.
More importantly, perhaps, she never explains how she was harmed by the
status conferences or how they in any way contributed to the court’s later
decision to grant summary judgment against her. Under these
circumstances, Bauman has failed to show that any purported error in
conducting status conferences while proceedings were stayed affected the
ultimate result.
2 The principal cases relied on by Bauman both involved chapter 7
petitions. (See Lane v. Vitek Real Estate Industries Group (E.D.Cal. 2010)
713 F. Supp. 2d 1092, 1097; In re Corbett (Bankr. E.D.Cal., Mar. 14, 2016,
No. 08-10861-A-7) 2016 WL 1045667, at *2.)
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2. Attempt to Disqualify Judge Strauss
Apparently believing that the periodic status conferences reflected a
bias against her, in May 2016 while this matter remained stayed Bauman
sought to disqualify Judge Strauss by filing a peremptory challenge pursuant
to Code of Civil Procedure section 170.6.3 The challenge was summarily
denied, presumably as untimely. (See § 170.6, subd. (a)(2) [“If directed to the
trial of a civil cause that has been assigned to a judge for all purposes, the
motion shall be made . . . within 15 days after notice of the all purpose
assignment”].) Citing section 170.3, subdivision (c)(5), Bauman claims Judge
Strauss erred in failing to refer her challenge to a different judge for action.
Bauman misunderstands the scope of subdivision (c)(5) of section 170.3.
It relates to challenges for cause based on the grounds specified in section
170.1. Pursuant to subdivision (c)(1) of section 170.3, a party who believes
there are grounds for disqualification may advise the judge by filing a
verified statement setting forth those grounds. In response, the judge may
voluntarily consent to disqualification without conceding the adequacy of the
grounds. (§ 170.3, subd. (c)(2) & (3).) If he or she does not consent, however,
the judge must file a verified answer to the disqualification statement
admitting or denying the allegations. (§ 170.3, subd. (c)(3).) At that point,
according to the statute, the challenged judge “shall not pass upon his or her
own disqualification.” (§ 170.3, subd. (c)(5).) Instead, “the question of
disqualification shall be heard and determined by another judge.” (Ibid.)
But Bauman never sought to disqualify Judge Strauss for cause
pursuant to section 170.1. The type of challenge Bauman filed in this case—
a peremptory challenge under section 170.6—utilizes a very different
procedure. It is based not on specific statutory grounds, but on a party’s
3 All statutory references are to the Code of Civil Procedure.
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belief that the judge cannot be fair and impartial. (§ 170.6, subd. (a)(6).)
There is no hearing on the adequacy of the purported basis for the party’s
belief. (Maas v. Superior Court (2016) 1 Cal. 5th 962, 972 [no requirement
that challenging party “prove facts showing that the judge is actually
prejudiced”].) If timely and in proper form, the judge must accept the
challenge and ask to have the case reassigned. (§ 170.6, subd. (a)(4); The
Home Ins. Co. v. Superior Court (2005) 34 Cal. 4th 1025, 1032.) Thus, in the
case of a peremptory challenge, the challenged judge decides the timeliness
and procedural adequacy of the challenge. If proper, it must be granted;
there is nothing left to refer to a different judge.
Moreover, even if Bauman were correct, her appellate claim is
foreclosed. A petition for writ of mandate is the exclusive means to challenge
the erroneous denial of a peremptory challenge under section 170.6. (People
v. Hull (1991) 1 Cal. 4th 266, 268.) Parties are not permitted to wait until
entry of an adverse judgment, as Bauman did here, and then contest the
denial of their section 170.6 challenge on appeal. (Hull, at p. 273.) Thus,
both substantively and procedurally, Bauman’s disqualification contention
fails.
3. Failure to Stay or Continue Based on Bauman’s Alleged Disability
With the last bankruptcy stay having expired in June, on September
28, 2018 Judge Strauss ordered Thrifty to re-serve pending discovery motions
that were originally filed in January 2016, setting a new hearing date on
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those motions for November 2.4 Bauman filed no opposition to these
motions. Instead, on the date set for the hearing she filed an “objection” to
the motion that included a request for a 90-day continuance of the hearing as
a special accommodation due to her alleged disabilities. (See Rule 1.100.)
Bauman made reference to “multiple brain injuries” that she claimed
“severely impair[] her eyesight and her mobility,” and she offered to provide
supporting medical records within 60 days if given leave to do so. The court
denied the request as untimely.
Rule 1.100 “governs requests for accommodations by persons with
disabilities.” (In re Marriage of James & Christine C. (2008) 158 Cal. App. 4th
1261, 1272.) It is designed to further California’s important public policy of
ensuring “that persons with disabilities have equal and full access to the
judicial system.” (Rule 1.100(b).) To accomplish that goal, the rule provides
a framework for requesting accommodations that will ameliorate the effect of
disabilities on persons appearing before California courts. In particular, rule
1.100(c)(3) specifically provides that “[r]equests for accommodation must be
4 In her reply brief, Bauman complains she had insufficient time to
respond to Thrifty’s discovery requests, pointing out that the court set the
new hearing 35 days later and asserting that “all other parties are normally
allowed 30 days just to answer discovery.” Bauman confuses the time for
responding to discovery requests with the time for responding to a discovery
motion. Thrifty’s discovery requests were originally served on Bauman in
early November 2015 when no stay was in effect. Discovery issues were the
subject of an ex parte conference with the court on January 14, 2016. A new
stay may have arisen nearly three months later on January 25, 2016 when
Bauman filed a new bankruptcy petition, but as we have explained that stay
expired at least by June 11, 2018. Thus, even excluding time during which
this action might have been stayed as a result of proceedings in bankruptcy
court, Bauman had substantially more than 30 days to respond to discovery
requests before the discovery motions were re-served in October 2018.
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made as far in advance as possible, and in any event must be made no fewer
than 5 court days before the requested implementation date.”
In this case, Bauman filed her request for accommodation on the date of
the hearing she wished to continue. Although the rule grants the court
discretion to consider accommodation requests made with less than five days’
notice, it had no obligation to do so. And we can hardly say the court abused
its discretion in denying Bauman’s untimely request. The case had already
been pending for more than seven years, albeit stayed for most of that time.
Moreover, Bauman’s request is framed in broad generalities. Her claimed
disability allegedly arises from the slip-and-fall accident that forms the
underlying basis for her lawsuit. It took place in 2010. She provided no
specific details on why she was unable to file a timely opposition to Thrifty’s
motions. Perhaps more importantly, she offered no explanation why she had
to wait until the date of the hearing to make her request for a continuance.
Coupled with concerns expressed by the bankruptcy court, we can
understand why Judge Strauss might conclude the untimely accommodation
request was merely another in a series of delaying tactics.
4. Other Contentions
In her reply brief, Bauman contends that her failure to oppose Thrifty’s
motion for summary judgment should be excused because she was not served
with the moving papers. She refers to one sentence in her opening brief,
suggesting it was sufficient to alert Thrifty to the issue, and maintains that
Thrifty’s failure to address the point amounts to a concession that service was
not proper.
Nothing in Bauman’s opening brief fairly argues that the trial court
erred in granting Thrifty’s motion for summary judgment because she was
not properly served. None of the five “Issues on Appeal” mentions service of
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the motion. Indeed, only one of the five even includes the words “summary
judgment,” and then only in the context of asserting that the court erred in
refusing to consider her request for a continuance as accommodation of her
disabilities, which “would have avoided” a ruling on the summary judgment
motion.
In arguing a contrary interpretation, Bauman refers to a statement on
page 13 of the opening brief. It appears in the context of recounting the
many ways in which the trial court allegedly harassed her during the course
of the litigation. Attempting to explain the dire straits she found herself in,
she describes (without citation to the record) how at the same time as she
was prosecuting this case she was also defending against a foreclosure action
on her home brought by Wells Fargo Bank. “This was,” she says, “at the
same time [Thrifty] moved for summary judgment.” She then adds, “This
was further complicated by the failure of [Thrifty’s] counsel to serve their
motion for summary judgment, and by the plaintiff’s inability to remember
that this case even existed while she was fighting for her life against the
fraudulent Foreclosure sale of her home . . . .” Again, there is no record
reference to support the assertion.
It is well settled that arguments made for the first time in a reply brief
are not properly considered absent a good explanation why they were not
made earlier. (See, e.g., Neighbours v. Buzz Oates Enterprises (1990) 217
Cal. App. 3d 325, 335.) Bauman provides no such explanation, nor does she
offer even belated record support for her assertion. As we have previously
noted, Bauman’s arguments in her opening brief were almost entirely
disconnected from the court’s summary judgment ruling, and the reply brief
cannot be the first occasion where the appellant finally connects the dots.
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Even were we to consider her contention on the merits, it would fail for
at least two reasons. First, the claim is forfeited because Bauman never
brought this alleged service deficiency to the attention of the trial court. It is
a fundamental rule of appellate procedure that absent exceptions not
applicable here, an appellant will not be heard to complain about claims of
error that were not first raised in the trial court. (See, e.g., Walker v. Apple,
Inc. (2016) 4 Cal. App. 5th 1098, 1113.) Second, the appellate record
affirmatively refutes her assertion. It includes a declaration of service,
signed under penalty of perjury, attesting to proper service on Bauman.
Bauman cannot, by a naked assertion in her brief unsupported by any proper
citation, contradict the record.5
Also for the first time in her reply brief, Bauman disputes the fact that
she failed to respond to Thrifty’s discovery requests, which then led to the
court granting Thrifty’s motion for summary judgment. In support of her
assertion, she requests that this court take judicial notice of a clerk’s
rejection letter dated November 30, 2018 that Bauman claims she received
after she attempted to file a document dated November 13, 2018 and titled
“Plaintiff’s Provisional Response to Discovery.” The document appears to
bear a file stamp of November 15 that has been cancelled. The rejection
letter explains that “Responses to Discovery shall be submitted to requesting
party as they are not to be submitted to the Court.”
Understanding that Thrifty raises numerous procedural and
substantive reasons why Bauman’s request for judicial notice is improper, we
elect to assume without deciding that the clerk’s rejection letter and attached
5 It goes without saying that Thrifty’s failure to specifically address
Bauman’s unsupported factual assertion in her opening brief, unconnected as
it is to the substance of her argument in that brief, does not amount to a
concession of its accuracy.
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“Provisional Response” can be judicially noticed.6 At most these documents
indicate that two weeks after the court’s ruling on Thrifty’s discovery motions
to which Bauman failed to timely respond, she made an inadequate and
untimely attempt to respond to the discovery requests that were the subject
of the motions the court had already decided. Informed that discovery
responses—untimely or otherwise—were not properly filed with the court,
Bauman took no further action by filing a motion for reconsideration of the
court’s November 2 ruling or in any other way. Nor did she respond to the
pending motion for summary judgment. Bauman thus fails to establish any
error by the trial court as to either the discovery motions or the subsequent
summary judgment motion.
6 We reject Bauman’s request for judicial notice as to the other three
documents she submits, two orders from other superior court judges in
unrelated cases and what appears to be a PACER system docket listing of
bankruptcies pursued by Bauman between 2010 and 2018. All are either
irrelevant or unnecessary to the resolution of this appeal. (See Clark v.
McCann (2015) 243 Cal. App. 4th 910, 917, fn. 4.)
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DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
GUERRERO, J.
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