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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



Before discussing Kimberly's appellate contentions, we set forth various rules applicable to our review.

A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) It is the appellant's burden to affirmatively demonstrate reversible error. (Denham v. Superior Court, supra, at p. 564; In re Marriage of Gray, supra, at pp. 977-978.)

The appellant's burden includes: (1) providing an adequate record that affirmatively demonstrates error; (2) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record; and (3) showing exactly how the error caused a miscarriage of justice, else his or her contentions are deemed forfeited. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Lack of legal counsel does not entitle a litigant to special treatment (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290); a pro se litigant is held to the same rules of procedure as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, disapproved on another point in Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 744, fn. 1.)

With these rules in mind, we turn to Kimberly's appellate contentions.


Kimberly asserts the trial court erred when it denied her summary judgment motion. Kimberly maintains that the trial court was required to grant summary judgment in her favor because Patricia did not oppose the motion and because various matters were deemed admitted by Patricia. Kimberly argues that the trial court improperly "stepped into the shoes of defense counsel, essentially raising an objection to the form of the pleadings (which had been waived by the failure to oppose) in order to forego any analysis of the legal or evidentiary issues presented in the MSJ."

The trial court did not step into the shoes of defense counsel. Rather, the trial court denied Kimberly's motion -- without prejudice -- because Kimberly did not comply with Code of Civil Procedure section 437c, rule 3.1350 of the California Rules of Court, and Local Rule 3.05 for the Siskiyou County Superior Court, which set forth the procedural requirements for a summary judgment motion. Although Code of Civil Procedure section 437c, subdivision (b)(5) states that "[e]videntiary objections not made at the hearing shall be deemed waived[,]" this does not prevent the trial court from enforcing the other rules of procedure.

As the appellant, Kimberly has the burden of demonstrating that the court erred in denying her motion. She does not meet this burden. Kimberly does not acknowledge the procedural requirements for a summary judgment motion or demonstrate that she complied with them. Moreover, Kimberly does not establish she was entitled to summary judgment by providing legal authority and analysis discussing the elements of the causes of action alleged in her complaint or the evidence she submitted in connection with the motion that established each of the elements. Nor does Kimberly demonstrate that she was prejudiced as a result of the court's denial of the motion. Generally, an order denying a motion for summary judgment does not constitute prejudicial error if the same question was subsequently decided adversely to the moving party after a trial on the merits. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343.)

Under the circumstances, Kimberly forfeited her claim that the trial court prejudicially erred in denying her motion for summary judgment.


Kimberly made several motions to compel discovery, most of which were denied by the court due to procedural flaws or Kimberly's failure to demonstrate good cause for discovery of privileged information. On appeal, Kimberly challenges the court's rulings but does not provide an adequate record to address her claims.

For example, Kimberly contends the court erred in denying her motions filed on May 5, 2008, May 28, 2008 and November 14, 2008, seeking to compel answers to interrogatories and the production of documents from Patricia. The record discloses the court denied the motions because Kimberly did not demonstrate good cause for the requested discovery. On one of the motions, the trial court said Kimberly sought privileged financial information without a showing of good cause, citing Code of Civil Procedure section 2031.310, which requires a party seeking to compel further responses to a demand for inspection of documents to "set forth specific facts showing good cause justifying the discovery sought by the demand." (Code Civ. Proc., § 2031.310, subd. (b)(1).)

Kimberly did not include the specified motions to compel in the appellate record, making it impossible to address whether the court abused its discretion in denying those motions. (Toshiba America Electronic Components v. Superior Court (2004) 124 Cal.App.4th 762, 767-768 [the denial of a discovery motion is reviewed for abuse of discretion].) Without those motions, we cannot discern whether Kimberly sought privileged information or whether the requested information was at least marginally relevant in that it would assist her to evaluate her case, prepare for trial, or facilitate a settlement. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1206.)

Kimberly also contends the trial court erred in denying her motion filed on July 2, 2008, seeking to deem certain matters admitted by Jerry. The court denied the motion because Jerry filed his verified discovery responses before the hearing, and Kimberly fails to demonstrate the court erred.

Code of Civil Procedure section 2033.280 states: "If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: [¶] . . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . . . [¶] (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. "

The court sanctioned Jerry, as required, and Kimberly presents no argument or authority demonstrating that Jerry's response was not in substantial compliance with the governing statute. Indeed, his responses are not part of the appellate record, making it impossible for us to review the matter. Once again, Kimberly has forfeited her claim of error.

Next, Kimberly contends the court erred in denying her motion filed on November 11, 2008, which also sought to deem certain matters admitted by Jerry. The motion is not included in the appellate record, however, and according to the trial court's ruling, the motion was a request for further answers to interrogatories, not a motion to deem matters admitted. The trial court denied the request on the ground it violated Jerry's right to privacy, but sanctioned him for failing to respond to Kimberly's discovery request in a timely fashion. Kimberly fails to meet her burden of providing an adequate record enabling us to address whether the court erred in denying her motion.

Moreover, Kimberly does not meet her burden of demonstrating that the denial of any of her discovery motions prejudiced the outcome of her case. She does not show how, or why, the requested discovery was necessary to prove specific elements of her causes of action. She asserts that the rulings forced her to dismiss her case against Jerry, but the appellate record does not include any documentation supporting this assertion.

Under the circumstances, Kimberly's claims of error are forfeited.


Kimberly maintains that the trial court abused its discretion when it entered a defense verdict on the ground that Kimberly's evidence and Patricia's deemed admissions were not sufficient to prove any of Kimberly's causes of action. The trial court observed that to give the admissions sufficient weight to prove causes of action not otherwise supported by the evidence would constitute a miscarriage of justice. Kimberly contends the trial court had no discretion to discount the weight of Patricia's admissions. This is not so.

After a matter is deemed admitted, the scope and effect of the admission is determined by the trial court, which has broad discretion in determining the admissibility and relevance of evidence. (Milton v. Montgomery Ward & Co., Inc. (1973) 33 Cal.App.3d 133, 138.) In a bench trial, the court rather than a jury is the ultimate arbiter of fact. Here, the trial court was privy to Patricia's admissions, as well as all of the evidence at trial, and simply did not find it convincing enough to meet Kimberly's burden of proving her case by a preponderance of the evidence. Kimberly's contention is essentially a challenge regarding the sufficiency of the evidence.

Kimberly's argument is hampered because the record on appeal does not contain a reporter's transcript of the evidence at trial. "In a judgment roll appeal based on a clerk's transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review. The trial court's findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record." (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.)

Here, Kimberly fails to establish reversible error as she does not demonstrate that Patricia's admissions necessarily proved every element of Kimberly's causes of action. Kimberly does not provide any legal analysis of the requisite elements, nor any factual analysis showing that the admissions pertained to those elements.

Accordingly, Kimberly's claim of error is unavailing.


On March 23, 2010, the trial court entered judgment in favor of Patricia and Jerry. Kimberly contends the trial court erred in neglecting to also enter judgment against defendants Richard and Thomas, because Kimberly had obtained entry of default against them.

However, the record Kimberly provided does not show entry of default against either Richard or Thomas, nor any evidence that Kimberly sought the entry of judgment against either defendant after a prove up hearing. (Code Civ. Proc., § 585, subd. (b).) But the court minutes from a hearing in May 2008 indicate a judgment had been entered against Thomas, which, if correct, means it would not have been appropriate for the trial court to enter judgment again after the conclusion of trial in September 2009.

In any event, Kimberly did not provide a record supporting her claim of error. Accordingly, her contention fails.


The judgment is affirmed.

We concur: BLEASE , Acting P.J. ROBIE,J.

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