DeMichele v. Steinbeck








Filed 11/8/10 DeMichele v. Steinbeck CA2/2







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DORIAN DeMICHELE, Plaintiff and Appellant, v. JAY STEINBECK, Defendant and Respondent.

B221954 (Los Angeles County Super. Ct. No. SC098639)

APPEAL from a judgment of the Superior Court of Los Angeles County.
Lisa Hart Cole, Judge. Reversed.

Bahar│Law Office, Sarvenaz Bahar for Plaintiff and Appellant.

Marron & Associates, Marron Lawyers, Paul Marron, Ronald A. Chavez for Defendant and Respondent.

___________________________________________________



Plaintiff sued for head injuries she sustained in a boating accident. The trial court granted summary judgment in favor of defendant boat owner, after permitting him to submit expert evidence and to fundamentally alter his separate statement of facts in his reply papers. Plaintiff was deprived of an opportunity to address and dispute the new evidence and new contentions, in violation of her right to due process. We reverse the judgment.
FACTS
Defendant Jay Steinbeck is the owner of Marina Del Rey-based “Margaritaville,” a sailboat designed for racing. Plaintiff Dorian DeMichele—a sailing novice—was a guest on “Margaritaville” on July 5, 2006. There was a regatta that day. DeMichele sat at “the back of the boat.” The race was uneventful, and the boat returned to port.
As “Margaritaville” sailed up the Marina Del Rey channel, DeMichele remained seated in the stern, watching the sunset with her back turned to the other people on the boat. Things were calm. She did not see Steinbeck. Suddenly, she felt as if “my head is cracked open, and I’m going to die.”
DeMichele did not know what hit her, so it was left to Steinbeck to explain what happened.^[1] He testified that he slipped and fell during a jibe, or tacking maneuver, and his head struck DeMichele’s head. At the time, Steinbeck and another man were both pulling the line of the spinnaker sail. The other man “let go of the sheet, the line early.” And, Steinbeck stated, “because he let go early, I lost my balance and fell backwards.”
The manager of “Margaritaville,” Tim O’Sullivan, is a professional sailor who has spent half of his 50 years racing Steinbeck’s sailboats. O’Sullivan did not witness Steinbeck’s fall, but heard about it later. He recalled that DeMichele said she was “alright” after the accident, and he described her as “jovial” at post-race festivities.
O’Sullivan did not offer any expert insight into the events surrounding the accident in his initial declaration. However, Steinbeck submitted an additional declaration from O’Sullivan with his reply papers. O’Sullivan now described the incident that he did not see, saying, “Steinbeck slipped during a jibe when the spinnaker sheet went slack. The spinnaker sheet went slack because the mast man was pulling it in front of Mr. Steinbeck, in the same direction, so there was no tension when Mr. Steinbeck pulled and he slipped back.”^[2] O’Sullivan then affixed his “expert” hat and opined that “It is not sailing negligence if Mr. Steinbeck slipped while assisting the mast man pulling in the spinnaker sheet. Slipping or letting loose of the line on a jibe or tack is not unusual when cruising or racing. Slipping, falling and letting go of a line are split second events that can occur simply due to the force of the wind on the spinnaker.”
PROCEDURAL HISTORY
In June 2008, DeMichele brought suit against Steinbeck for negligence, premises liability and maritime tort.^[3] She alleges that Steinbeck’s boat was negligently piloted in a manner that caused Steinbeck to lose his balance and strike plaintiff. Steinbeck filed a motion for summary judgment in August 2009. In his separate statement of facts, Steinbeck relied solely on DeMichele’s testimony that she did not know what hit her, as proof that her negligence claim fails. DeMichele opposed the motion, arguing that Steinbeck owned the boat and was in charge, but failed to maintain control of the sail. She contended that Steinbeck failed to meet his burden of showing either that there is a complete defense, or that an element of plaintiff’s claim cannot be established.
Steinbeck served his reply on October 23, 2009, five days before the hearing, but did not file the reply in court until two days before the hearing. His reply contained new evidence and a new statement of undisputed facts. Based on the new evidence, Steinbeck added new undisputed facts, including the “fact” that “The incident did not occur as a result of negligence.”
At the hearing on Steinbeck’s motion, the court denied DeMichele’s oral request for a continuance to conduct further discovery to counter O’Sullivan’s new expert declaration. It granted Steinbeck’s motion for summary judgment and entered judgment in his favor. The appeal is timely.
DISCUSSION
1. Appeal and Review
The judgment is final and appealable. (Code Civ. Proc., § 437c, subd. (m)(1).) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Id., subd. (c).) A defendant meets his burden of showing that a cause of action has no merit by showing that “one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id., subd. (p)(2).) Review is de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
2. Procedural Deficiencies
DeMichele complains that (1) Steinbeck’s reply to her opposition was untimely filed; (2) Steinbeck’s reply improperly contained new evidence; and (3) Steinbeck’s reply improperly contained an amended statement of facts.
As DeMichele points out, no evidence supporting Steinbeck’s moving papers is contained in the superior court file, or listed on the court’s register. Moreover, Steinbeck did not present a conformed, file-stamped copy to prove that the evidence was filed. It is impossible to know what evidence the trial court relied upon in making its ruling: the court did not refer to any of the evidence, in violation of the statutory requirements. When granting summary judgment, the court “shall specifically refer to the evidence proffered in support of . . . the motion which indicates that no triable issue exists.” (Code Civ. Proc., § 437c, subd. (g), italics added.)
A reply to opposition of a summary judgment motion “shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (b)(4).) Steinbeck’s papers were timely served, but were not timely filed. Steinbeck did not make a showing of good cause, or obtain leave from the court to file a late reply. Without a showing of good cause and a court order, an untimely filing is invalid. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) DeMichele did not object to the late reply in the trial court because she had no access to the court file and was unaware that the papers were filed after the statutory deadline.
The primary concern is that Steinbeck completely altered his motion in his reply papers. In his moving papers, Steinbeck did not carry his initial burden of proof on summary judgment. His separate statement does not even dispute plaintiff’s claim that she sustained a serious injury while sitting on Steinbeck’s boat. With his reply, Steinbeck submitted a new declaration from O’Sullivan stating that “[s]lipping or letting loose of the line on a jibe or tack is not unusual when cruising or racing”; therefore, he opined, it was not negligent if Steinbeck slipped and fell on DeMichele. Tellingly, Steinbeck rewrote his separate statement of facts to reflect the new expert evidence. For the first time, Steinbeck attempted to show that he did not breach a duty of care. Steinbeck’s effort to meet his burden on summary judgment came too late. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.)
“Summary judgment, although a very useful tool in litigation, is also a drastic remedy. Because of this, it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy.” (Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256; Maga