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Kimberly R. Olson v. Patricia Smith et al

February 17, 2011


(Super. Ct. Nos. SCSCCVCV07987 & SCSCCVPO07996)

The opinion of the court was delivered by: Mauro ,j.

Olson v. Smith CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Kimberly R. Olson sued defendants Patricia Smith, Richard Smith and Jerry Smith in case No. SCSCCVPO07996, and Thomas Ackley in case No. SCSCCVCV07987, asserting various torts arising from a neighbor dispute.*fn1 Kimberly appeals from a judgment entered in favor of Patricia and Jerry. Kimberly contends the trial court erred when it (1) denied her motion for summary judgment, (2) denied some of her discovery motions, (3) required her to present substantial evidence to support matters previously deemed admitted by Patricia, and (4) neglected to issue a final judgment against Richard and Thomas.

Kimberly forfeited her claims of error, however, because she did not comply with the rules of appellate procedure, including the rules requiring her to provide an adequate record for review and to show exactly how the trial court committed prejudicial error. We will affirm the judgment.


Certain facts can be gleaned from the limited information available in the record on appeal. Kimberly's complaint against Patricia and Richard asserted causes of action for general negligence, willful negligence, negligence per se, public and private nuisance, nuisance per se, and negligent infliction of emotional distress, setting forth identical allegations for each cause of action. The court subsequently permitted Kimberly to add Jerry as a defendant in May 2008. Kimberly alleged that Patricia, Richard and Jerry allowed their house to be used for "[i]llegal and improper uses," including gang activity, illegal drug use and drug dealing, storage of illegal vehicles, and the illegal operation of off-road vehicles throughout the public streets, thereby creating a nuisance and danger to Kimberly.

In March 2008, Kimberly moved for summary judgment against Patricia. In her declaration submitted in support of the motion, Kimberly said Patricia owns a house in Hornbrook, where Kimberly lives, and that Patricia is the landlord for her step-grandson Thomas and his stepfather Richard. Kimberly said that Thomas stole Kimberly's medical marijuana, threatened to burn down Kimberly's house, and revved his off-road vehicle in front of Kimberly's house to annoy her. According to Kimberly, Patricia refused to evict Richard and Thomas, which reduced Kimberly's property value by "at least $20,000."

The trial court denied Kimberly's summary judgment motion because Kimberly did not comply with applicable rules governing such motions.

Following a bench trial, the trial court entered judgment in favor of Patricia and Jerry. The court ruled that Kimberly's evidence did not prove any of her causes of action by a preponderance of the evidence. The court said that Patricia's rental of her property to individuals who may or may not have used the property for illicit purposes did not render Patricia liable to Kimberly for negligence. As for the nuisance claims, the court ruled that the evidence did not prove Patricia's conduct substantially and unreasonably interfered with Kimberly's use and enjoyment of her property. The court also determined that Kimberly's allegations of gang activity and/or a conspiracy to engage in activity which allegedly degraded Kimberly's quality of life in her home were not supported by the evidence. In addition, according to the trial court, Kimberly did not prove that Patricia, alone or with others, converted Kimberly's personal property.

The trial court noted that Patricia testified at length in her defense, but that certain matters were deemed admitted by Patricia because she failed to respond to Kimberly's discovery requests. Nonetheless, the court ruled that Patricia's admissions were not sufficient to prove any of Kimberly's causes of action. The court observed that it had authority to determine the scope and effect of matters deemed admitted, and that it struck any defense evidence that was contrary to the admissions. But even with much of the defense evidence stricken, Kimberly failed to prove any of her causes of action. The trial court stated, "[t]o give the deemed admissions in this case sufficient weight to prove causes of action which are not otherwise supported by significant evidence would, in the Court's view under the circumstances of this case, comprise a miscarriage of justice."



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