Filed 7/13/20 Sojai v. Solomon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PAUL SOJAI,

Plaintiff and Appellant,

v.

DANICA SOLOMON et al.,

Defendants and Respondents.

B285801

Los Angeles County
Super. Ct. No. VC062704

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert B. Broadbelt III, Judge. Affirmed.

Paul Sojai, in pro. per., for Plaintiff and Appellant.

Freeman Mathis & Gary, Rebecca J. Smith, Kristin A. Ingulsrud; Mandell, Damon & Associates and Barbara J. Mandell for Defendants and Respondents.

_________________________

Plaintiff Paul Sojai appeals from a summary judgment in favor of defendants Danica Solomon and Natalie Small. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In January 2013, plaintiff sued defendants for injuries he allegedly sustained in a pile-up automobile accident involving a vehicle owned by Small and driven by Solomon. His complaint charged defendants with motor vehicle and general negligence, and claimed compensatory damages according to proof.

On July 6, 2016, plaintiff began representing himself after the trial court granted his attorney’s motion to be relieved as counsel.

On September 1, 2016, defendants served plaintiff with requests for admission and form interrogatories. Among other things, the requests asked plaintiff to admit the accident was “not the result of [defendants’] failure to use reasonable care,” and to admit the accident “did not result in any type [of] harm to [plaintiff] whatsoever.” A form interrogatory asked plaintiff to state and identify, “for each response that is not an unqualified admission,” all facts and documents supporting the denial. Plaintiff failed to serve timely responses.

After attempting to meet and confer with plaintiff, defendants moved to compel responses to the form interrogatories and to have the facts in the requests deemed admitted. Plaintiff did not oppose the motions or appear for the noticed hearing. The court granted the motions. On November 28, 2016, defendants served plaintiff with notice of the ruling.

On February 28, 2017, defendants moved for summary judgment based on the deemed admissions. Plaintiff did not file an opposition or responsive declaration.

On May 18, 2017, the trial court held a hearing on defendants’ summary judgment motion. Before the hearing, the court distributed a tentative ruling proposing to grant the summary judgment motion on the grounds that (1) plaintiff, by his deemed admissions, conceded defendants did not breach a duty of care or cause him any injuries; and (2) plaintiff failed to file an opposition or responsive declaration demonstrating a triable issue of fact.

According to the parties’ settled statement, as corrected and modified by the court after a hearing (Cal. Rules of Court, rule 8.137(f)(4)(A)), plaintiff confirmed he had received defendants’ summary judgment motion, he did not file an opposition or responsive affidavit, and he had received and read the court’s tentative ruling. Plaintiff presented oral arguments, “which were not testimony given under oath,” recounting his version of the car accident. His argument conflicted in critical ways with a police report of the accident and the facts that were deemed admitted under the court’s order. He also claimed he was “threatened by the defendants’ attorney,” and he “believe[d]” the attorney must have threatened another driver involved in the accident. And plaintiff claimed, contrary to his deemed admissions, that he suffered from “severe neck and back pain” since the accident.

After hearing argument, the trial court adopted its tentative ruling. Plaintiff filed a timely notice of appeal from the judgment.

DISCUSSION

Plaintiff argues the court improperly denied him a continuance to gather additional discovery to oppose the summary judgment motion. He also argues defendants failed to demonstrate they were entitled to judgment as a matter of law. Neither contention has merit.

1. Standard of Review

Summary judgment is properly granted if all the papers submitted show no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 152.) A defendant meets its burden by showing that one or more essential elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (o); Aguilar, at p. 849; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) “ ‘When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 931–932.) We review a trial court’s ruling granting summary judgment de novo. (Saelzler, at p. 768.)

2. Plaintiff Did Not Request a Continuance

Section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Italics added.) Plaintiff concedes he was not entitled to a continuance under the statute because he failed to submit an affidavit in opposition to defendants’ motion.

“Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance. [Citation.] This requires a showing of good cause.” (Hamilton v. Orange County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 765 (Hamilton).) In deciding whether there is good cause to continue a summary judgment motion, “courts consider various factors, including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644; Hamilton, at p. 765.)

Plaintiff argues the trial court should have granted him a continuance under the discretionary standard. Critically, however, he has not presented a record showing he made a request for continuance, let alone a request supported by a “showing of good cause.” (Hamilton, supra, 8 Cal.App.5th at p. 765.) Absent such a request, we cannot find the trial court abused its discretion by ruling on the noticed summary judgment motion. (See, e.g., People v. Visciotti (1992) 2 Cal.4th 1, 48 [absent “timely objection . . . , any claim of abuse of discretion is deemed to have been waived”].) Plaintiff has not established reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [an appealed judgment is presumed to be correct, appellant has the burden to overcome the presumption by providing an adequate appellate record demonstrating the alleged error].)

3. The Deemed Admitted Facts Establish Defendants Were Entitled to Judgment as a Matter of Law

Under section 2033.280, “[i]f a party to whom requests for admission are directed fails to serve a timely response, . . . [t]he 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.” (Id., subd. (b).) “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.” (Id., subd. (c), italics added.) “ ‘[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.’ ” (St. Mary, supra, 223 Cal.App.4th at p. 776, quoting Wilcox, supra, 21 Cal.4th at p. 979.) “Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300.” (§ 2033.410, subd. (a), italics added.)

Consistent with the mandate in section 2033.280, subdivision (c), the court made an order deeming plaintiff to have admitted the matters specified in defendants’ requests for admission, including that the accident was “not the result of [defendants’] failure to use reasonable care” and that the accident “did not result in any type [of] harm to [plaintiff] whatsoever.” Based on these deemed admissions, the court concluded no triable issue of material fact existed and defendants were entitled to judgment as a matter of law. (See § 437c, subd. (c).) Because the deemed admissions conclusively establish defendants’ right to summary judgment, we cannot reverse the judgment unless plaintiff can demonstrate the deemed admitted order should have been set aside. (Cf. Wilcox, supra, 21 Cal.4th at p. 977 [because deemed admitted order supported summary judgment, appellate review was limited to whether plaintiff was entitled to statutory relief from the order].)

Under section 2033.300, a party may withdraw or amend an admission “only on leave of court granted after notice to all parties.” (Id., subd. (a).) “The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” (Id., subd. (b).)

In his appellate briefs, plaintiff appears to argue his failure to respond to defendants’ requests for admission was the result of excusable neglect. He states he was “unrepresented at the time” defendants moved to have the requests deemed admitted and he was “unfamiliar with legal concepts and procedures.” He also claims defendants’ attorney “misle[d]” him about defendants’ willingness to settle the case and, as a result, he had “not viewed the falsified evidence and admissions” supporting the summary judgment motion. And he maintains the argument he presented at the summary judgment hearing, including his version of how the car accident occurred and his statements about the damages he suffered, was sufficient to raise a triable issue of material fact.

Because plaintiff did not make a noticed application to have the deemed admissions withdrawn under section 2033.300, the trial court properly treated the admitted facts as conclusively established against him. (§ 2033.410, subd. (a) [a deemed admission is “conclusively established . . . , unless the court has permitted withdrawal or amendment of that admission under Section 2033.300”].) While we are sympathetic to the challenges facing plaintiff as a pro. per. litigant, the fact that he is representing himself does not diminish his burden to follow the statutorily mandated procedure. The law permits a party to act as his own attorney; however, “ ‘[s]uch a party is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) Under the statutory framework, the trial court was authorized to permit withdrawal of the admissions “only” if, “after notice to all parties,” the court determined the admissions were the result of excusable neglect and defendants would not be prejudiced in defending the case. (§ 2033.300, subds. (a) & (b), italics added.) Without the requisite noticed application from plaintiff, supported by a showing of excusable neglect, the trial court did not have discretion to treat the deemed admissions as anything other than “conclusively established” facts. (§ 2033.410, subd. (a).) Thus, notwithstanding plaintiff’s arguments at the summary judgment hearing, the court properly concluded there were no triable issues and defendants were entitled to judgment as a matter of law. (See § 437c, subd. (c).)

DISPOSITION

The judgment is affirmed. Defendants Danica Solomon and Natalie Small are entitled to their costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, Acting P.J.

We concur:

DHANIDINA, J.

EPSTEIN, J.*