Martinez v. Neema
Filed 1/24/14 Martinez v. Neema CA1/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
ANDY W. MARTINEZ,
Plaintiff and
Appellant,
v.
FRANCOIS NEEMA,
Defendant and
Appellant.
A133116, A134475, A134790
(Sonoma
County
Super. Ct. No.
SCV-246810)
In these three consolidated appeals, two men, both of whom had
previously dated the same woman and later allegedly became involved in
in pro per, appeals from that court’s (1) grant of summary judgment to defendant
Neema from Martinez’s first amended complaint alleging libel, libel per se, abuse of
process, intentional infliction of
conspiracy and (2) subsequent order imposing sanctions on him. Neema appeals from (3) the trial court’s
order denying him further sanctions against Martinez.
We affirm the trial court’s grant of
summary judgment against Martinez and in favor of Neema, and also both of its orders regarding the
award of sanctions.
BACKGROUND
Plaintiff Martinez is a
resident of Los Angeles County. Defendant Neema is a
resident of Sonoma County. The woman they were both
once allegedly involved with, Kimberly Doane, was apparently a resident of Marin County.
In his first amended complaint filed
on April 13, 2010, Martinez—there, as here, acting in pro per—alleged 18 causes
of action against Neema. The basis of
all of them was his charge that Neema created false Yahoo e-mail accounts using
Martinez’s name and, via them, sent e-mails to Doane, e-mails that were allegedly
intended to interfere with Doane’s “attempt to
estranged husband. That complaint
further alleged, via many different causes of action, that the dispatch of
these e-mails led Doane to seek and secure a temporary restraining order
against Martinez subjecting “Plaintiff [i.e., Martinez] to civil
action,†for which he sought awards of damages and punitive damages from Neema.
Martinez and Neema
engaged in more than a year of discovery and related litigation. For example, Neema requested that Martinez
admit that Neema did not in fact create the Yahoo e-mail accounts or send Doane
any e-mails using Martinez’s name as the purported author; Martinez denied those
requests.
On April 1, 2011,
Neema filed a motion for summary judgment, which was set for hearing on June
21. On June 7, Martinez filed an
opposition to that motion, an opposition which included numerous evidentiary
objections, but no declaration pursuant to Code of Civil Procedure section 437c,
subdivision (h).
title="">[2] On June 16, Neema filed his reply papers in
support of his summary judgment motion, papers which included his reply to Martinez’s
evidentiary objections and his own similar objections.
On June 22, one day in advance of a
continued hearing date, the trial court (the Honorable Patrick Broderick)
issued a tentative ruling granting Neema’s motion for summary judgment.
Although Martinez had not
made a timely request for oral argument on Neema’s summary judgment motion, he
claimed he misunderstood the required procedure for doing so, and moved the
trial court to hear oral argument, which it agreed to do.
On July 7 and 11, respectively, Martinez filed
motions (1) to introduce oral evidence at the hearing and (2) for leave of the
court to amend his pleadings before any hearing on Neema’s summary judgment
motion. A hearing on the motion for
summary judgment was held on July 12.
Via a formal order filed on July 25,
the trial court denied both of Martinez’s motions as untimely, and also ruled on the evidentiary objections
of the parties and Martinez’s request for judicial notice.
It then upheld its June 22 tentative ruling. In so doing, the court stated: “Even if all of Plaintiff’s evidence is
considered, as well as the documents for which Plaintiff seeks judicial notice,
there is insufficient evidence to show that Defendant Francois Neema was
involved in any way with the e-mails at issue in this lawsuit. It can be argued that the evidence seems to
show that Defendant Mark Quesenberry was the person impersonating
Plaintiff. However, the evidence shows
no connection between Defendant and the phony e-mails and no conspiracy between
Defendant Neema and Defendant Mark Quesenberry.[
the evidence which create any triable issues of material fact for either of
those claims.â€
The court thus granted Neema’s
motion for summary judgment; a formal judgment in his favor was entered on August
17.
A few days before that, however, Martinez filed a
motion for reconsideration; a hearing thereon was set for October 11. On September 2, he filed a notice of appeal
from the trial court’s August 17 judgment.
On September 27, Neema filed his opposition to Martinez’s motion
for reconsideration. The trial court
denied that motion on November 28 on the basis that the motion set forth no new
facts or law supporting it.
After the trial court’s grant of
summary judgment, on October 3 it entered an order allowing plaintiff Martinez
to file a second amended complaint, but specifically to do so as to
related to phony e-mails against Defendant Francois Neema because that matter
has been adjudicated, and any claim related to phony e-mails is barred as to
Defendant Neema by the doctrines of res judicata and collateral estoppel.†Nonetheless, Martinez did include Neema as a
defendant in his second amended complaint and, after a hearing on December 1,
the trial court ordered Martinez to pay Neema sanctions in the amount of Neema’s
costs and attorney fees “incurred as a result of having to respond†to that
second amended complaint. On February 27, 2012, the court entered an order awarding Neema attorney fees and costs
in the amount of $5,155.15, an amount consistent with Neema’s earlier
applications for such.
On March 5, 2012, Martinez filed a
notice of appeal from this order.
In the meantime, on September 14,
Neema had filed a motion for sanctions against Martinez for the latter’s
failure to admit in the course of discovery that Neema was not involved in the
phony e-mails that had been sent to Doane.
Martinez opposed this motion on November 17, and Neema replied to this
opposition on November 21. On December
15, the trial court denied that motion.
On January 31, 2012, Neema filed a notice of appeal from that order. (5 CT 856.)
On March 20, 2012, this court issued an order consolidating all three of these
appeals.
A. The
Trial Court’s Grant of Summary Judgment to Neema Was Proper
We will deal first with the trial
court’s grant of summary judgment in favor of Neema. Under the de novo standard of review
applicable to such rulings (see, e.g., Kasparian
v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24), we have no
problem affirming this ruling. That is
so principally because Martinez has provided no factual record in either his
five-volume appellant’s appendix (nor is there any in the clerk’s transcript
apparently ordered by Neema) which establishes that there was any factual
evidence overlooked by the trial court which proved—or for that matter even suggested—that
Neema was the author of the e-mails sent to Doane.
In arguing that there was, Martinez
has supplied this court with briefs which (1) contain few if any citations to
the record provided us, (2) suggest that the record contains factual material for
which no citations are provided, and (3) omit many key procedural and
substantive facts from the record, matters which are contained in the clerk’s
transcript and a respondent’s appendix supplied by Neema.
The law is clear that an in pro per
party to an appeal is not entitled to any “preferential consideration†but,
rather, “ ‘is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and attorneys.’ [Citation.]â€
(First American Title Co. v.
Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1, and cases cited therein.) Pursuant to this law we will analyze the
arguments presented by both parties in these consolidated appeals under these
same standards.
In his brief to us,
Martinez devotes almost half of it to a recitation of the procedural facts
underlying these appeals. He then
summarizes the merits of his case thusly: “[T]his is a case clearly with merit,
with evidence of tortious acts on behalf of Defendant Neema and fellow
conspirators that involved fraudulent impersonations, hidden identities, and
manipulative behavior, a case in which new evidence was still being discovered
and new parties being added when the motion [for summary judgment] was filed.â€
Martinez then cites, and relies upon
for several pages in his brief, the decision of one of our sister courts in
Cal.App.4th 389 (Bahl), in arguing
that, here, the trial court erred in not granting him a further continuance to
produce additional evidence in support of his opposition to Neema’s motion for
summary judgment. Indeed, the trial
court’s denial of further continuances to Martinez regarding
his opposition to Neema’s motion for summary judgment in this (then) over
one-year-old case, is a principal ground for Martinez’s appeal.
In Bahl, supra, 89 Cal.App.4th 389,
the court reversed a grant of summary judgment rendered by the trial court
in favor of the defendant because, principally, the trial court denied the
opposing party’s request for a continuance to adduce additional evidence in
opposition. Bahl, however, does not aid Martinez. First of all, it was decided before the 2002
amendments to section 437c, amendments which enlarged the time to file an
opposition to a motion for summary judgment from 28 to 75 days. (See § 437c, subd. (a).) On that basis alone, it has been effectively
distinguished by at least one later decision.
(See Cooksey v. Alexakis (2004)
123 Cal.App.4th 246, 260.)
Second, a trial court’s decision
437c(h) is reviewed for abuse of discretion.
(See Knapp v. Doherty (2004)
123 Cal.App.4th 76, 100-102.)
Particularly in view of the liberality shown Martinez by the
trial court,
title="">[5] it is difficult if not
impossible to find such an abuse here.
Third, in Bahl the opposing party supported his request for a continuance
with a declaration under section 437c(h),
which Martinez failed to do here. (See
& 398.) The reason such a
declaration is required is for the party to “ ‘show that its proposed discovery
would have led to “facts essential to justify opposition.†’ †(Scott
v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) As a leading treatise has noted, this means
that a party seeking a continuance must meet several specific requirements. (See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2013) ¶ 10:207.15, p. 10-88,
and cases cited therein.) Martinez clearly
did not do so here.
Fourth and probably most
importantly, as our colleagues in the Third District wrote regarding
“Plaintiff relies on Bahl[
that a continuance is ‘virtually mandated upon a good faith showing that a
continuance is necessary to obtain facts essential to justify opposition’ to a
summary judgment motion. Plaintiff is
correct that Bahl made that
observation. For the purpose of this
opinion, we need not decide whether it is correct; for assuming that it is, the
court's observation does not aid plaintiff here. The virtual mandate to which plaintiff refers
presupposes a good faith showing that there are facts in opposition that may
exist and a good faith showing why those facts could not have been presented at
the time of the hearing. Plaintiff has
made neither showing here, and the motion to continue was properly
denied.†(Bushling v. Fremont
Precisely the same principle applies
here: despite his voluminous pleadings in the trial court, as that court found,
Martinez presented no credible evidence to it showing that Neema was (or was
very likely) the author of the “phony†e-mails sent to Doane.
First of all, Martinez had,
during the course of the year-plus discovery, requested information on Neema’s geographic
locations when the “phony†e-mails were sent to Doane. Neema supplied that information via responses
to interrogatories, documents he produced, and a declaration.
Although, in his deposition, Martinez stated
that he had evidence which placed former co-defendant Quesenberry at or near
some of those locations, he conceded that his discovery had produced no such
evidence as to Neema. Indeed, in his
deposition answers to seven separate and distinct questions posed to him by
Neema’s counsel, Martinez answered “No†or “Correct†to all of them, thus effectively
confirming that he had no evidence linking Neema to the fake Yahoo e-mails to
Doane. And he also conceded that he
could not and did not challenge the authenticity of any of the documents
produced by Neema during the course of the extensive discovery in the
litigation.
Additionally, Neema’s filings during
the course of that discovery made clear that he did not know and had never met
Quesenberry. Absolutely nothing in the
over 500 hundred pages of documents filed by Martinez in the
trial court is cited by him as contradicting any of these important premises
supporting the trial court’s ruling.
Indeed, about the only specific item
of proffered evidence cited by Martinez in support of his claim that Neema (an individual with some sort of
a French heritage) was the author of the “phony†Yahoo e-mails to Doane was a
declaration by an alleged linguistics expert from New York, one
Robert Leonard. That individual opined
that, after reviewing those e-mails, he had concluded that it was a reasonable
“hypothesis†that someone with a French heritage might have been the author of
the e-mails, i.e., that “the distribution
of the language data†suggests that such a “hypothesis†was superior to a
negative hypothesis regarding such a connection. The trial court correctly concluded that this
declaration was inadmissible because it was made in New York and did
not state that it was made pursuant to the laws of California. (See §§ 2013 & 2015.5 and
33 Cal.4th 601, 609-612.)
Beyond this, the only other evidence
Martinez claims to have presented to the trial court in support of his claim
that Neema was the alleged author of the e-mails to Doane were stated in his
answers to Neema’s interrogatories. But
all these statements did was suggest that (1) Neema and Quesenberry possibly
knew each other (a fact specifically denied by Neema as noted above), (2)
contrary to Neema’s sworn statements, Martinez believed that Neema in fact had
sent the e-mails and used a PDA, smart phone, or laptop, and (3) both Neema and Quesenberry had dated
Doane in the past.
However, clearly all of this in no
way amounts to credible evidence that Neema was the author of the e-mails sent
to Doane. At the most, it consists of
theories and arguable inferences that might be drawn from the evidence
presented by Martinez. But the law is clear that
if only “inferences†are produced by a party opposing a motion for summary
judgment, “those inferences must be reasonably deducible from the evidence, and
not such as are derived from speculation, conjecture, imagination, or
guesswork.†(Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161;
see also Annod Corp. v. Hamilton &
Samuels (2002) 100 Cal.App.4th 1286, 1298-1299 and Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640,
647.) As our Supreme Court has made
clear: “Speculation . . .
is not evidence.†(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864.)
However, and very clearly
speculation are all that Martinez can and does cite in his opposition to Neema’s motion for summary
judgment. Such is clearly inadequate:
when a party moving for summary judgment is confronted with an opposition which
lacks supporting factual evidence, that party may argue that absence of
evidence-based opposition in support of its motion. The party opposing the grant of summary
judgment must then “ ‘set forth specific facts showing that there is a
genuine issue for trial.’ †(
37 Cal.App.4th 1282, 1286, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, fn.
23.) Put another way: “Once the burden shifts as a result of the
factually devoid discovery responses, the plaintiff must set forth the specific
facts which prove the existence of a triable issue of material fact.†(Union
Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; see also
Inc. (2008) 158 Cal.App.4th 666, 667-683; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1104; 6
Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial,
§§ 240-242, pp. 685-688 and further authority cited therein.)
Clearly, plaintiff Martinez did not
meet this standard in his opposition to Neema’s motion for summary judgment or
in his brief to us. Thus, Martinez’s
“Separate Statement of Undisputed Material Facts in Opposition to Defendant’s
Motion for Summary Judgment,†filed by him on June 8, consisted of 22 pages of
allegedly “supporting evidence,†but with, in actuality, little if any
supporting evidence cited. Thus, most of
these supposed statements of fact contain no
citations to any evidence adduced during discovery; they are followed by
two pages of nothing but citations to depositions, etc., but with absolutely no
attempt to suggest what items of the voluminous evidence cited supports which
of the previous factual assertions.
For example, the principal statement
of undisputed fact asserted by Neema (No. 2 in this pleading) was that
“Plaintiff’s attempts to locate Defendant Neema relative to the subject emails
and logins have failed; Neema was not present in any of the identified
locations.†Martinez’s response
to assertion No. 2—which he thereafter repeatedly cites to in his later
“responsesâ€â€”consists of approximately 14 pages of factual statements, which are
then followed by two pages of citations to depositions and other discovery
documents. But, notably, at no point
does Martinez attempt to link the two, i.e., a reader of these pages has
absolutely no idea which of the factual assertions are supported by which of the
evidentiary citations. Thus, this pleading totally fails to satisfy
any rational test of an understandable opposition to a motion for summary
judgment.
Martinez’s brief to
this court fares no better. Its first 24
pages consist of a statement of facts and a “Statement of Appealability.†The first six pages of the “Discussionâ€
portion discusses the Bahl case
(discussed and distinguished, ante)
and contends that that case supported his need for a continuance in the trial
court. However, in none of these pages
is there a single citation to the record; the only citations of any sort in
those pages are to Bahl and one other
case about the need for a “ ‘compassionate response to a request for a
continuance.’ †(Quoting
The next four-plus pages are devoted to the argument that the trial
court’s grant of summary judgment “is ambiguous†because it does not state
whether its finding of “insufficient evidence†refers to the evidence plaintiff
had already submitted or the evidence “Plaintiff did not have time to submit . . .
[or] was ruled inadmissible by the court.â€
But, again, Martinez cites to no evidence, in either category, which negated the trial
court’s ruling except its ruling—noted above—regarding the declaration of the
reputed New York linguistics expert.
About 12 pages of “ARGUMENT†follow
and, in them, plaintiff Martinez asserts no less than eight separate and
distinct arguments regarding how the trial court erred in, e.g., denying his
request for a continuance to introduce additional evidence, his request to
introduce oral evidence at the hearing, and his request to amend his pleadings,
and also denying admission of the declaration of the linguistics expert and in
imposing costs on him. But, other than
another citation to the declaration of linguistics expert Leonard, no evidence in
the record is cited.
In sum, in neither his argument to
the trial court nor his brief to us does Martinez cite any evidence (other than
the declaration of Leonard which, as noted above, was excluded under section
2015.5) which, even slightly, supports his argument that there was tangible
evidence in the record that Neema was, or even very possibly was, the author of
the “phony†e-mails to Doane. We thus have
no problem in sustaining the trial court’s grant of summary judgment to Neema.
B. The Sanctions Award to Neema Is Supported By the Record
The operative standard of review of
a trial court’s order either granting or denying sanctions against a litigant
is abuse of discretion. (See, e.g.,
Cal.App.4th 992, 1001, and cases cited therein; and Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408,
422.) We find no such abuse of
discretion by the court regarding its award of attorney fees and costs to
Neema.
We affirm the trial court’s order awarding
attorney fees and costs to Neema in the amount of $5,155.15 because of
Martinez’s very obvious failure to follow the trial court’s specific direction that
he not name Neema as a defendant in
Martinez’s second amended complaint. Indeed,
the trial court made its position on this subject clear to Martinez not once,
but twice. The basis for these orders
was the trial court’s finding that Martinez, despite
being given the opportunity, had failed to prove any tortious conduct by Neema. Martinez’s failure to adhere to these very specific orders of the trial
court establishes that it was clearly not an abuse of discretion for the trial
court to award these sanctions against Martinez.
This disposes of Martinez’s appeal, and we turn to that of Neema.
C. The Trial Court’s Denial of Discovery Sanctions to Neema Was
As noted, after obtaining the summary judgment in his favor, Neema
filed a motion for sanctions against Martinez based on
his failure to admit that Neema was not involved in the e-mails sent to
Doane. The specific background on this
was that
on or about March 29, 2010, about six weeks after Martinez had filed
his original complaint and two weeks before he had filed his first amended
complaint—in short, before the case was even at issue—Neema served a set of
Requests for Admission on Martinez. The first two requests
asked Martinez to admit that Neema “did not create email accounts in your nameâ€
and did not send the four e-mails attached to Martinez’s
complaint. The following month, Martinez filed
denials of these two requests for admission.
Over a year and a half later, after the
discovery and litigation described above and the trial court’s order granting
Neema’s motion for summary judgment, Neema filed a motion for sanctions in the
amount of $86,078.58, i.e., the “total amount of fees and costs incurred since
the date of receipt of Plaintiff’s denial of the above-quoted Requests for
Admission.†Neema’s motion was based on
section 2033.420, which essentially provides that if a responding party fails
to admit something which the propounding party later proves to be true, the
propounding party may move the court to order the responding party to pay
reasonable expenses incurred in making that proof, including reasonable
attorney’s fees. And the section
expressly provides that “(b) The court shall make this order unless it finds
any of the following: . . . [¶] (3) The party failing to
make the admission had reasonable ground to believe that that party would
prevail on the matter. [¶] (4)
There was other good reason for the failure to admit.â€
On November 17, 2011, Martinez filed his opposition to that motion, which opposition included a declaration
of Martinez and several attachments. The
motion was heard on December 1, 2011, before Judge Broderick,
who had been involved in the litigation since before the motion for summary
judgment was heard. Judge Broderick heard
extensive argument on the motion, as discussed in detail below. On December 15, he entered an order denying Neema’s
request for sanctions. In so doing, he
stated: “Although the Court ultimately
granted the motion for summary judgment in favor of defendant Neema, it does not
necessarily follow that the plaintiff did not have a ‘reasonable good faith
belief’ that he would be able to prove his theories of liability against Neema
at trial.†Judge Broderick then cited
and discussed two cases arising under the governing statute where sanctions
there was no arguable issue (because of expert testimony developed in the
course of the litigation) about the presence or absence of liability.
requested sanctions by stating: “The
test is not whether Mr. Martinez was ultimately able to prove his
theories. Rather, the test is whether at
the time the plaintiff refused to admit [the] request for admissions he held a
reasonable good faith belief that he would prevail at trial on those issues,â€
citing, in support of his conclusion, the case of Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1277 (
In Laabs, the Fourth District affirmed a denial of a request for
sanctions under section 2033.420. In so
doing, it first noted that, under that statute, a court should not award
sanctions if it finds that “ ‘the party failing to make the admission had
reasonable ground to believe that that party would prevail on the matter.’ â€
(Laabs,
supra, 163 Cal.App.4th at p. 1276.) The
opinion then concluded that, in the case before it, the trial “court could have
easily concluded that at the time plaintiff refused to admit such matters she
reasonably held a good faith belief that she would prevail at trial on these
issues. Therefore, the court did not
abuse its discretion in denying the City’s motion with respect to these
matters.†(Id. at p. 1277.)
The Laabs court cited and relied upon an earlier decision interpreting
and applying the predecessor statute to section 2033.420, subdivision (b): Brooks
v. American Broadcasting Co. (1986) 179 Cal.App.3d 500 (
In Brooks, Division Four of
this court affirmed a trial court’s order partially granting and partially
denying a motion seeking expenses incurred by defendants in a personal injury
case after the plaintiff had denied two specific requests for admission. The holding of Brooks which the Laabs court
found particularly pertinent to the issue before it was this: “In evaluating whether a ‘good reason’ exists
for denying a request to admit, ‘a court may properly consider whether at the
time the denial was made the party making the denial held a reasonably
entertained good faith belief that the party would prevail on the issue at trial.’ †(Laabs,
supra, 163 Cal.App.4th at p. 1276, quoting Brooks, supra, 179 Cal.App.3d at p. 511.)
As both the Laabs and Brooks decisions
confirmed, our standard of review of such a ruling by the trial court is abuse
of discretion. (See also
Cal.App.4th 618, 637, fn. 10.) It is not,
even in part—as Neema contends in his brief to us—de novo review.
And we find no abuse here.
The record demonstrates that Judge
Broderick considered this issue carefully, both prior to oral argument, when he
had issued a tentative decision, and at the hearing. Thus, for example, in the discussion of this
tentative holding with counsel for Neema at oral argument, Judge Broderick first
noted that the fact that, long after the filing of the requests for admission
by Neema and their denial by Martinez (both in early 2010), the grant of Neema’s motion for summary judgment
(in August 2011) involved “two separate situations†and “two distinct time
periods,†thus suggesting that “a different analysis†is required regarding the
reasonableness of Martinez’s denial of the requests for admission and his later
opposition to Neema’s motion for summary judgment.
This observation provoked a questioning
response from Neema’s counsel that “what we’re supposed to be asking is what is
the reasonable basis for his belief?†In
responding to that question, Judge Broderick first noted that a declaration
filed by Martinez specified (1) several conversations between the parties as to the
various controversial e‑mails, (2) the fact that Ms. Doan [
away,†and (3) “the declaration of this Robert Leonard Ph.D.â€
In addition, the record included
Martinez’s declaration that had been submitted in opposition to the motion for summary
judgment which testified to some events that had occurred before he had filed
this lawsuit—and of which he was aware at the time he denied the requests for
admission early in this lawsuit.
name="_ftnref10" title="">[10]
Judge Broderick then went on to note
that in Laabs the trial court “did
not make a finding†as to the truth or not of the specific request for
admission. And, he continued: “In that matter, the party had held a good
faith belief. The appellate court even
goes further and says the court could have concluded that at the time the
plaintiff refused to admit such matters, she held a good faith belief that she
would prevail at trial on these issues.
I agree with you as we both talked about these cases there is not a lot
of cases that articulate what that code section means. I was surprised to see how far this appellate
court was willing to extend this analysis.
The trial court did not even make that specific finding. The appellate court says but the trial could
have, so there is not going to be sanctions issued. They go on to clarify that it is her
reasonably held good faith belief that she would prevail not that a reasonable person
or reasonable attorney.â€
After a response to this from Neema’s counsel, Judge Broderick suggested
that, even if there is later a defense verdict, the defendant is not
“automatically entitled to attorney fees.â€
Rather, “The analysis is at the time they denied the request for
admission, what was taking place at that time.â€
Neema’s counsel responded by inquiring, “[I]f the case is dismissed on
the ground of absolutely no evidence whatsoever, then how can you say at any
time there was an objectively reasonable belief that he’d win?†And Judge Broderick responded: “It is not whether I would have had an
objective reasonable belief or whether you or your client would have. The Labbs [sic] case makes it clear it is
what that party’s reasonable belief [is].
In the Labbs [sic] case, it doesn’t talk about whether they had sufficient
evidence. It doesn’t talk about whether
they had the witnesses and documents to prove their case. They talk about whether the plaintiff held a
good faith belief that she would prevail at trial on these issues.â€
After a few further comments by both
Neema’s counsel and Martinez, Judge Broderick reaffirmed his ruling denying Neema’s
request for expenses in proving his case, stating: “[T]he court looks to the appellate courts
and their interpretation of the statute for guidance. In this matter the court has identified just
by way of a couple of examples. The court’s
finding that Mr. Martinez at the time he denied the request for admission held
a reasonable good faith belief that he would prevail at trial. Again whether he ultimately does so is not
the issue or whether others would agree with him that he had the basis to hold
that belief is not the issue. It is a
reasonable person’s standard. It’s the
standard of the person who is sitting down reading the request for admission
and denying it. Therefore the court will
deny the request for sanctions.â€
Neema argues that Judge Broderick
abused his discretion when he applied “a Subjective Standard of Reasonablenessâ€
to evaluate Martinez’s belief that he would prevail at trial. He argues that such should be evaluated based
on an objective view of the reasonableness of Martinez’ belief
that he would prevail. In other words,
as we understand the argument, the test must be an objective one. This is clearly the view of our dissenting
colleague, who urges that some opinion must come out and point blank say
so. We disagree.
As our colleagues pointed out in
508, “With the exception of several minor, nonsubstantive language revisions,
section 2034, subdivision (c), has remained the same since it was enacted as
part of the Discovery Act in 1957.
(Stats. 1957, ch. 1904, § 3, p. 3336.)â€
The statute says what it says, and apparently has served its purpose
well, yielding a grand total of two cases in 55 years. Put otherwise, courts apparently have not had
much trouble applying the language of section 2033.420, subdivision (b): whether the responding party had reasonable
ground that it might prevail. As the
leading practical treatise puts it, the “responding party may avoid sanctions
by establishing that it had a reasonable
basis for believing it would prevail on the issue at time of trial, and
relied thereon in denying the RFA. [Code
Civ. Proc., § 2033.420, subd. (b)(3).]
[¶] The responding party must
show that at the time of denial, it held a reasonably
entertained (i.e., based on admissible evidence) good faith belief that it would prevail on the issue at trial. [See Laabs,
supra, 163 Cal.App.4th at p. 1276.]â€
(Weil & Brown, Cal. Practice Guide: Civil Proc.
Before Trial (The Rutter Group rev. #1 2012) ¶ 8:1408, p. 8G-39.)
Here, Judge Broderick concluded that
“[A]t the time [Martinez] denied the request for admission [he] held a reasonable good faith
belief that he would prevail at trial.
Again whether he ultimately does so is not the issue or whether others
would agree with him that he had the basis to hold that belief is not the
issue. It is a reasonable person’s
standard.†The two most applicable
authorities, Laabs and
they make clear that the test is whether the denier of the request for
admission held a good faith belief in the substance and basis of his denial.
Broderick carefully followed the law as set forth in Laabs. That is what he was
compelled to do. (See
57 Cal.2d 450, 455.) It was hardly an
abuse of discretion.
Judicial discretion has been
described as “the sound judgment of the court, to be exercised according to the
rules of law.†(Lent v. Tilson (1887) 72 Cal. 404, 422.) This “ ‘implies absence of arbitrary
determination, capricious disposition or whimsical thinking.’ †(In re
Cortez (1971) 6 Cal.3d 78, 85.) We discussed
the concept in People v. Jacobs (2007)
156 Cal.App.4th 728, 736: “Various
definitions and principles describing the abuse of discretion standard of
review have been stated and repeated in numerous cases, such as in
331, that we will set aside a trial court ruling only upon a showing of ‘ “ ‘a
clear case of abuse’ †’ and ‘ “ ‘a miscarriage of justice.’ †’
As to what is required to show such
abuse, it has been said that a trial court abuses its discretion only when its
ruling ‘ “ ‘fall[s] “outside the bounds of reason.†’ †[Citation.]’ (People
v. Benavides (2005) 35 Cal.4th 69, 88; accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [abuse of
discretion requires a showing that the trial court ‘ “exceed[ed] the
bounds of reason, all of the circumstances before it being considered†’].)
More colorfully, it has been said that
discretion is abused only when the trial court’ s ruling is arbitrary,
whimsical, or capricious. (
Cal.App.4th 1603, 1614; People v. Branch
(2001) 91 Cal.App.4th 274, 282; see People
v. Giminez (1975) 14 Cal.3d 68, 72 [‘ “capricious disposition or
whimsical thinking†’].)†We would
be hard pressed to apply any of those adjectives to Judge Broderick here.
The judgment and orders of the trial
court are all affirmed.
_________________________
Haerle,
J.
I concur:
_________________________
Richman, J.
Concurring and dissenting opinion of Kline,
P.J.
I
concur in all portions of the majority opinion save that sustaining the trial
court’s order denying Neema discovery sanctions against Martinez.
The
chief claim Neema advances in his appeal is that, as he titles the argument in
his opening brief, “The Trial Court
Abused its Discretion When it Applied a Subjective Standard of Reasonableness
to Measure Martinez’[s] Belief That He Would Prevail at Trial.†According to appellant, the trial court
reasoned that as long as Martinez genuinely believed that his belief he
could establish Neema impersonated him online was reasonable, “that was the end
of the inquiry.†Appellant says this is
not the standard, and applying it “was an abuse of the trial court’s discretion,â€
as the subjective test the court employed “essentially eviscerates the remedy
provided for in [Code of Civil Procedure section] 2033.420.†As appellant says, â€[a]ny party facing
sanctions would only have to say that he thought his belief that he would
prevail was reasonable when he denied the requests for admissions, no matter
how unsupported that belief may have been by any evidence.â€
Unfathomably,
my colleagues refuse to candidly address this central claim or even acknowledge
that the trial court applied a subjective test, as I believe it clearly did,
which was a manifest abuse of discretion.
The
majority states that Code of Civil Procedure section 2033.420, subdivision
(b)(3)
“says what it says, and apparently has served its purpose well, yielding a
grand total of two cases in 55 years.
Put otherwise, courts apparently have not had much trouble applying the
language of [that statute]: whether the responding party had reasonable ground
that it might prevail. As the leading
practical treatise puts it, the ‘responding party may avoid sanctions by
establishing that it had a reasonable
basis for believing it would prevail on the issue at time of trial, and
relied thereon in denying the RFA.
[Citation.] [¶] The
responding party must show that at the time of denial, it held a
admissible evidence) good faith belief
that it would prevail on the issue at trial. [Citations.]†(Maj. opn. at p. 17.)
Of
course section 2033.420 “says what it says,†as do all statutes; and it makes
sense only if reasonableness is to be assessed objectively. Courts have had “no trouble†applying the
language of the statute because it would be virtually useless if the standard
of reasonableness were subjective, and all that was required to avoid sanctions
was a good faith belief one would prevail.
The statute has yielded “a grand total of two cases in 55 years†(maj.
opn. at p. 16) (both of which apply an objective standard) only because
the proper standard, which has never been disputed, is so obvious that
appellate courts were not called upon to explicitly confirm it. Moreover, neither Labs v. City of Victorville (2008) 163 Cal.App.4th 1242 (Labs),
nor Brooks v. American Broadcasting Co.
(1986) 179 Cal.App.3d 500 (Brooks), nor
any other case, has ever said, as do my colleagues, that the test is merely
that the denier of the request for admission held a good faith belief in the
substance and basis of his denial (maj. opn. at p. 17, and fn. 11), which, as
the majority acknowledges, “was precisely the standard relied upon by the trial
court in its order here†(maj. opn. at
p. 17, fn. 11).
It
is a complete mystery to me why the majority is unwilling to state that the
standard of reasonableness must be
objective; recognize that a subjective standard was improperly applied in this
case; and simply remand the matter to the trial court to apply the proper
standard.
The
majority avoids the simple issue Neema presents by theorizing that the trial
court found Martinez’s belief he would prevail at trial reasonable on the basis of
admissible evidence referred to in the declaration Martinez submitted
in opposition to Neema’s motion for sanctions. As will be seen, the trial court made no such
evidentiary finding; indeed, the only
explanation given by the trial court for its reasonableness determination was
that Martinez’s subjective belief he would prevail was held in good faith, and
under Laabs that was a sufficient
basis upon which to deny Neema’s motion for sanctions.
The
majority’s attempt to obscure the trial court’s application of a subjective
standard fails. Early on at the hearing
on Neema’s motion for sanctions, the court indicated that, in its view, the
opinion in Laabs, supra,163
Cal.App.4th 1242, required only “that at the time the plaintiff refused to
admit such matters, she had a good faith belief that she would prevail at trial . . . .†Though some of the court’s language is
confusing, one thing is clear: in the mind
of the court, a good faith belief was sufficient to prevent an award of
sanctions, even if it was not based on a “reasonable ground,†i.e., objectively
unreasonable. For example, noting that
although the plaintiff in Laabs was
deemed to have held a good faith belief she would prevail at trial,†the trial
court expressed “surprise[]†at “how far this appellate court was willing to
extend this analysis,†because it went on “to clarify that it is
she would prevail, not that [of] a
reasonable person or reasonable attorney.†(Italics added.) As the court stated, the issue “is not
whether I would have had an objective reasonable belief or whether your client
would have [such a belief].†According
to the trial court, “whether others would agree with [Martinez] that he
had the basis to hold that belief is not the issue,†because the standard is
that “of the person who is sitting down reading the request for admission and
denying it.â€
A
subjective test of reasonableness is supported neither by reason nor the text
of the pertinent statute, which requires the party failing to make the
admission to have a “
party would prevail on the matter.†(§ 2033.420, subd. (b)(3), italics
added.) If reasonableness need not be
objective, and a good faith belief sufficed to bar sanctions, fools would be
franchised.
According
to the majority, “nothing in either Laabs
or Brooks†stands for the proposition
that “ ‘the reasonableness that justifies a party’s refusal to admit a request
for admissions under section 2033.420 is objective.’ †(Maj. opn. at p. 17, fn. 11.) They have not read the opinions carefully.
In
that case, a passenger in a car injured in a collision sued a city alleging her
injuries were caused by a dangerous condition of public property under
Government Code sections 830 and 835.
She argued that the placement of a light pole too close to the roadway
contributed to the severity of her injuries.
The trial court granted the city’s motion for summary judgment and
subsequently denied the city’s motion for defense costs under section 1038, and
for expenses incurred in proving matters that the passenger had denied as
discovery sanctions under section 2033.420.
(Laabs, supra, 163 Cal.App.4th
1242.)
Section
1038, which is similar in some respects to section 2033.420, provides that in
certain proceedings, the court, on motion of the defendant, shall, at the time
of granting various forms of summary relief, “determine whether or not the
plaintiff . . . brought the proceeding with reasonable cause and
in good faith belief there was a justifiable controversy under the facts and
law which warranted the filing of the complaint . . . . If the court should determine that the
proceeding was not brought in good faith and with reasonable cause . . .
the court shall render judgment in favor of [the defendant] in the amount of
all reasonable and necessary defense costs, in addition to those courts
normally awarded to the prevailing party.â€
(§ 1038, subd. (a).) Referring
to this statutory language, and citing cases, the Laabs court stated that in order to deny a motion for fees under
section 1038, “the court must find the plaintiff brought or maintained the
action (1) in the good faith belief in the action’s justifiability, and (2)
supra, 163 Cal.App.4th at p. 1271, italics added.)
The
issue in Laabs with respect to
section 1038 arose from the fact that the trial court had not expressly
good faith belief in the actions justifiability†and “with objective reasonable
cause,†and identified the basis of the reasonable belief. (Laabs,
supra, 163 Cal.App.4th at p. 1271.) Therefore,
one of the issues in the case was whether the requirement that “that the court
reasonable cause determinations [means] that the court is further required to
the record.†(Id. at p. 1272.) The court
answered the question in the negative, stating: “Although the court did not
the issues involved in the motion, neither the statute nor other authority
required it to do so. Thus, based upon
the doctrine of implied findings and the fundamental rules of appellate review
upon which it is based we are required to infer any factual determinations
necessary to support the order.†Over
the dissent of Justice Hollenhorst, the Laabs
majority simply inferred that the trial court had determined “that that
action was brought in good faith and reasonable cause†(id. at p. 1273), and on the basis of that inference concluded
that the city’s motion for fee under section 1038 was properly denied.
The
Laabs court then turned its attention
to section 2033.420, the statute of concern here. The plaintiff opposed the city’s motion for
sanctions under that statute on the ground that the admissions sought were not
matters of substantial importance (§ 2033.420, subd. (b)(2)) and, if they
were, that she “ ‘had good reason to deny several of the requests.’ â€
(Laabs,
supra, 163 Cal.App.4th at p. 1276; § 2033.420, subd. (b)(3).) As in applying section 1038, the trial court
applied section 2033.420 without making any explicit findings whether, as the
plaintiff claimed, the claims were either “of no substantial importance†to the
case, or the plaintiff “had reasonable
ground to believe [she] would prevail on the matter.†Also over the dissent of Justice Hollenhorst,
the majority solved this problem by imputing the requisite findings to the
trial court. With respect to three of
the requested admissions, the Laabs majority
determined that “[t]he trial court could
reasonably have concluded that [said admissions] were not central to the
disposition of the case†(Laabs, supra,
163 Cal.App.4th at p. 1276, italics added), and that, with respect to the
remaining requested admissions, the trial court “could have easily concluded†that the plaintiff “reasonably held a
good faith belief that she would prevail at trial on these issues.†(Id.
at p. 1277, italics added.)
Justice
Hollenhorst dissented from the orders applying sections 1038 and 2033.420
“[b]ecause the trial court failed to state whether or not it had found that
Plaintiff brought or maintained her action in the good faith belief in the
action’s justifiability and with objective reasonable cause†(
1290, dis. opn. of Hollenhorst, Acting P.J.) and without “stating any reasons.â€
(Id.
at p. 1291, dis. opn. of Hollenhorst, Acting P.J.)
As
the trial court in this case also made no express factual findings—apparently
interpreting Laabs as relieving it of
that responsibility—my colleagues, like the Laabs
majority, fill the void by implying the
requisite finding. Laabs does not, however, justify use of the doctrine of implied
findings in the circumstances of this case, which are very different from those
in Laabs.
In
Laabs the trial court provided no
reason to think its determination was based on an erroneous (i.e., subjective) standard
of reasonableness, and under fundamental rules of appellate review, the
reviewing court was therefore justified in assuming it applied the correct
standard. In this case, however, as the
previously quoted language of the trial court makes clear, the court applied an
erroneous standard. Fundamental rules of
appellate review and the doctrine of implied findings cannot be used to sustain such an abuse of discretion.
In
short, Laabs does not, as my colleagues
claim, “clearly support†their opinion; and neither does Brooks, supra, 179 Cal.App.3d 500, which they also rely
upon. Brooks simply says, in language quoted in Laabs, that in determining whether a “good reason[]†exists for
denying a request to admit, “a court may properly consider whether at the time
the denial was made the party making the denial held a reasonably entertained good faith belief that the party would
prevail on the issue at trial.†(
Brooks both squarely stand for the
unremarkable proposition that the reasonableness that justifies a party’s
refusal to admit a request for admissions under section 2033.420 is
objective. The fact that neither
to think, as do my colleagues, that a subjective standard is appropriate. (See maj. opn. at p. 17, fn. 11.)
Because
the trial court’s application of a subjective standard of reasonableness
constituted a manifest abuse of discretion, I would remand the matter to the
trial court for reconsideration of Neema’s motion for sanctions pursuant to the
proper, objective, standard of reasonableness.
The
majority’s reasons for affirming the denial of sanctions do not stand up to
scrutiny. Though unclear, the majority
opinion appears to uphold the trial court’s ruling on two grounds: First, that Martinez denied the two requests
for admissions very early in the litigation, before he had time to seek and
obtain discovery; second, that the trial court relied on factors Martinez
identified in his declaration in opposition to Neema’s motion, which provided a
reasonable basis upon which Martinez could believe he would be able to show
that Neema injuriously impersonated him online.
The
trial court did not rely on either of these factors, and neither stands up to
scrutiny.
The
first factor ignores the lengthy discovery and other investigations of Neema
undertaken by Martinez, or others acting at his request, long before he filed this action against Neema. As for the Martinez
declaration, the record fails to show that any of Martinez’s factual
representations played any role in the trial court’s denial of Neema’s motion
for sanctions. I address the two factors
in turn.
Preliminarily, it is clear that “[a]
party responding to requests for admissions has a duty to make a reasonable
investigation to ascertain the facts even though the party has no personal
knowledge of the matter when the party has available sources of information as to
the matters involved in such requests for admissions. [Citations.] Thus, if a party denies a request for
admission (of substantial importance) in circumstances where the party lacked
personal knowledge but had available sources of information and failed to make
a reasonable investigation to ascertain the facts, such failure will justify an
award of expenses under section 2034, subdivision (c).†(Brooks,
supra, 179 Cal.App.3d at p. 510.)
Moreover, as Justice Sabraw pointed out in Brooks, it is not “enough for the party making the denial to ‘hotly
contest’ the issue. . . . there must be some reasonable basis
for contesting the issue in question before sanctions can be avoided.†(Id.
at p. 511.)
There are, however, circumstances in
which a requested admission may be reasonably denied even though hindsight
shows it to be unreasonable. Thus, very
early in litigation, before significant discovery has been undertaken, it is
ordinarily possible for a plaintiff to reasonably believe he would be able to
adduce evidence that would support his assertions though subsequent
developments show the belief to have been unreasonable. A plaintiff should be provided some time in
which to produce such evidence. As has
been said, “[s]ometimes a party justifiably denied a request for admission
based upon the information available at the time of the denial, but later
learns of additional facts or acquires information which would have called for
the request to be admitted if the information had been known at the time of the
denial. If such a party thereafter
advises the party that propounded the request for admission that the denial was
in error or should be modified, a court should consider this factor in
assessing whether there were no good reasons for the denial.†(Brooks,
supra, 179 Cal.App.3d at p. 510, fn. omitted, citing Garrison v. Warner Brothers Pictures (9th Cir. 1955) 226 F.2d 354,
356.)
There are, however, no such
extenuating circumstances here.
As the majority explains, Neema’s
motion for sanctions was based on Martinez’s refusal to admit that Neema “did
not create e-mail accounts in [his] name,†and “did not send the e-mails
attached as Exhibits A, B, C, and D to [his] complaint.†As the trial judge knew, with the help of a
private investigator and an attorney, Martinez had been
diligently investigating Neema’s online conduct for more than a year before he
filed the present action. Much of his
investigation was conducted in the form of discovery in a judicial proceeding
relating in some ways to this one. Before
he commenced this lawsuit, Martinez had been sued by Kimberley Doane for harassment. In defending himself against Doane’s claims
(some of which he felt should have been made against Neema), Martinez took
Neema’s deposition, and in February and June of 2009—a year before he filed the
complaint herein—Martinez filed deposition subpoenas for the production of
business records from Neema’s internet service provider, Yahoo, seeking
disclosure of any internet accounts possibly maintained or used by Neema to
impersonate Martinez in e-mails to Doane.
The voluminous information Martinez obtained from these and other
efforts, which was filed with the trial court in this case in connection with
Neema’s motion for summary judgment, demonstrably failed to show either that
Neema created e-mail accounts in Martinez’s name, or that Neema sent Doane the
e-mails attached to Martinez’s complaint, or to corroborate any of Martinez’s
other suspicions regarding Neema’s online activities.
The information Martinez possessed
before he sued Neema was alone sufficient to provide a reasonable person in his
position substantial reason to appreciate and acknowledge his inability to show
that Neema created e-mails in his name or sent the e-mails attached to Martinez’s
complaint, which was necessary in order for him to prevail in this action.
But there is more. Prior to the time Neema requested the
admissions at issue, Martinez had been authoritatively informed by multiple knowledgeable public
agencies that his prodigious efforts to establish that Neema had impersonated
him online had failed and were not worth pursuing.
In
April and May 2009, Martinez provided the District Attorney of Marin County and
the San Anselmo Police Department all of the information he and his private investigator
had obtained from Yahoo and other sources assertedly supporting Martinez’s
theory that Neema had created e-mail accounts in Martinez’s name which he had
used to send Kimberley Doane the four e-mails attached to Martinez’s
complaint. After reviewing the
information, both agencies concluded that the information provided no support
for Martinez’s suspicions nor even warranted further investigation.
The San Anselmo Police Department
prepared a six-page single-spaced analysis of Martinez’s evidence. After concluding that “there is no concrete
evidence linking any of the persons on the list that Martinez provided,
particularly Neema, who Martinez suspects was the main culprit in this case,â€
the police department informed Martinez that “there is no more the Law
Enforcement community can do in regards to your case until e
| Description | In these three consolidated appeals, two men, both of whom had previously dated the same woman and later allegedly became involved in offensive e-mails, appeal from different orders of the Sonoma County Superior Court. Plaintiff Martinez, appearing in pro per, appeals from that court’s (1) grant of summary judgment to defendant Neema from Martinez’s first amended complaint alleging libel, libel per se, abuse of process, intentional infliction of emotional distress, and conspiracy and (2) subsequent order imposing sanctions on him. Neema appeals from (3) the trial court’s order denying him further sanctions against Martinez. We affirm the trial court’s grant of summary judgment against Martinez and in favor of Neema, and also both of its orders regarding the award of sanctions. |
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