2016-00199561-CU-BT

Julie A. Poletti vs. Stephanie L. Williams

Nature of Proceeding: Motion for Summary Judgment

Filed By: Vance, Natalie P.

Defendants Stephanie Williams, and the Law Office of Stephanie Williams’ motion for summary judgment is granted.

In this legal malpractice action, self-represented Plaintiff Julie Poletti alleges that Defendants committed malpractice in connection with Defendants’ representation of

her in a family law matter.

Defendants’ request for judicial notice is granted.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,1009.)

Defendants separate statement includes the following. Defendants served Plaintiff with 31 requests for admission on October 3, 2017. The requests asked Plaintiff to admit that Defendants did not breach a duty of care during their representation of Plaintiff. After receiving no responses to the requests for admissions, Defendants filed a motion to have the requests deemed admitted. In response to the motion, Plaintiff filed a declaration attaching proposed responses which were signed but did not contain the required verification under penalty of perjury. On December 14, 2017, the court issued a tentative ruling stating that the admissions were deemed admitted

“unless plaintiff serves verified responses to the requests before the hearing that are in substantial compliance with CCP 2033.220.” The Court noted that unverified responses were tantamount to no responses at all, and that the Court was required to deem the requests admitted unless plaintiff served verified responses prior to the hearing. No party requested oral argument and the Court issued a minute order on December 15, 2017 confirming the tentative ruling. Defendants’ counsel served Plaintiff with notice of entry of the order on December 19, 2017. On December 19, 2017, Defendants’ counsel received Plaintiff’s responses to the requests for admission dated December 15, 2017. The proof of service states that the response was served on December 4, 2017 but was signed on December 15, 2017. The response was signed “under oath” but was not signed under penalty of perjury and does not identify the place of execution. As such, it failed to comply with the statutory requirements. Cal Code Civ Proc § 2015.5. Declarations shall be certified as true under penalty of perjury, signed, state the place of execution, dated, and under the laws of the State of California. Id.; Kulshrestha v. First Union Com. Corp.,(2004) 33 Cal. 4th 601, 608-619.

Defendants move for summary judgment on the basis that their requests for admission have been deemed admitted and therefore that Plaintiff has admitted that Defendants did not breach any duty in connection with their representation of her and she suffered no damage. The elements of a legal malpractice claim are “(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.)

According to Defendants, Plaintiff failed to timely serve responses to the requests for admission prior to the hearing on December 15, 2017 and in any event, the responses which were signed “under oath” were tantamount to no responses at all because they were not executed under penalty of perjury.

At the outset, the Court finds that Defendants’ evidence is not sufficient to demonstrate that the responses served on December 15, 2017 were in fact untimely served. The evidence shows that the proof of service was signed on December 15, 2017. Defendants argue that the responses were late because the Court issued a tentative ruling on December 14, 2017, which became final that day when no party requested oral argument. The tentative ruling recited the statutory language that the requests for admission would be deemed admitted unless “verified responses” were served before the hearing. The hearing was set for 2 p.m. on December 15, 2017. While the tentative ruling may have become final when no party requested oral argument, Plaintiff was still permitted to serve responses before the 2 p.m. hearing on December 15, 2017 in order to have the admissions not deemed admitted. At most the Court has a proof of service showing mailing on December 15, 2017. There is no time indicated on the proof of service and the Court cannot conclude as a matter of law that Plaintiff did not serve the responses before 2 p.m. on December 15, 2017.

However, Defendants are correct that the responses were deficient because they were simply signed “under oath.” Responses to requests for admissions must be signed under oath. (CCP §§ 2033.210(a), 2033.240(a).) The Code is clear that where a verification or oath is required, it must indicate the place of execution and be made under penalty of perjury. (CCP § 2015.5.) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-636.)

Plaintiff’s responses fail to indicate where the declaration was executed and are not verified under penalty of perjury. As a result, Defendants’ evidence shows that the responses served on December 15, 2017 were not “verified responses” that were in substantial compliance with CCP § 2033.220. The evidence thus shows that the requests were therefore deemed admitted as a result of Plaintiff’s failure to serve “verified responses” before the hearing. (CCP § 2033.280.) Plaintiff was deemed to have admitted that Defendants did not breach any duty of care and that she was not damaged, both of which are essential elements of Plaintiff’s legal malpractice cause of action. “(A) deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. [Wilcox V. Birtwhistle (1999) 21 Cal.4th 973, 983; Weil & Brown, Cal. Civil Pro. Before Trial (Rutter Guide, 2015 Update) § 8:1375.1.) The evidence is therefore sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact.

Plaintiff has failed to meet her burden. To that end, Plaintiff’s opposition papers fail to comply with the California Rules of Court. Indeed, Plaintiff failed to file a responsive separate statement that complies with CCP § 437c(b)(3) and CRC Rule 3.1350. “The failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (CCP § 437c(b)
(3).) A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. ( Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.)

More critically, Plaintiff’s two page opposition (with additional pages of exhibits) fails to even address the very basis for the instant motion, that is, that Defendants’ requests for admissions were deemed admitted by the Court. She submits no arguments or evidence regarding whether she submitted verified responses to the subject requests for admission prior to the hearing on December 15, 2017. That is, she presents no evidence or argument disputing that the responses that she served did not designate the place of execution and were simply signed “under oath” and not under penalty of perjury. As set forth above, these responses were tantamount to no responses at all. (Appleton, supra, 206 Cal.App.3d at 635-636.) Thus, Plaintiff has failed to demonstrate a triable issue of material fact as to whether her responses to the requests for admissions were deemed admitted.

While Plaintiff does not specifically cite to CCP § 437c(h), her opposition essentially seeks a continuance until after April 20, 2018, which is the date she was ordered by the Court to provide responses to Defendants’ form interrogatories and requests for production. She argues that she needs additional time to conduct discovery to organize a table of material facts and provide the requisite evidence. The decision whether to grant a continuance under California Code of Civil Procedure section 437c

(h) falls within the discretion of the trial court, (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 72.) Such a request for a continuance, as noted, must be accompanied by affidavits showing that facts justifying an opposition may exist but cannot then be presented. (CCP § 437c(h).) The affiant need not show evidence does exist, only that it may. This “leaves little room for doubt that such continuances are to be liberally granted.” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634 [quoting Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) CCP § 437c(h) “mandates a

continuance of a summary judgment hearing upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 556.) If a party requesting a continuance submits an affidavit demonstrating that facts essential to justify opposition exist, the court’s discretion to deny a continuance because that party was not diligent in discovering the facts earlier is “strictly limited.” (Bahl v Bank of America (2001) 89 Cal.App.4th 389, 398 [“the issue of discovery diligence is not mentioned in section 437c (h), which raises obvious doubts about its relevance.”]) Here, Plaintiff’s arguments indicate that she will be able to provide evidence of Defendants’ misconduct. She does not, however, indicate that any continuance would allow her to present any evidence regarding the sole basis for the instant motion, that is, that Plaintiff was deemed to have admitted that Defendants did not breach any duty of care and that she was not damaged. Plaintiff’s opposition entirely overlooks this issue. The Court must note that Plaintiff never moved for relief from the admissions. The Court declines to grant a continuance under these circumstances.

In short, Plaintiff has failed to raise any triable issue of material fact as to whether she admitted that Defendants did not breach any duty of care and that she was not damaged, both of which are essential elements of Plaintiff’s legal malpractice cause of action. Having failed to demonstrate the existence of a triable issue of material fact, Defendants are entitled to judgment as a matter of law.

The motion for summary judgment is granted.

Defendants’ evidentiary objections are ruled upon as follows. The objection to Plaintiff’s entire declaration is sustained as the declaration does not state where it was executed and does not state that it was executed under penalty of perjury of under the laws of the state of California as required by CCP § 2015.5. The remaining objections to the separate exhibits in the declaration are therefore moot. In any event, even if the Court overruled the objections, it would have no bearing on the outcome of the motion.