Opinion
B225527
11-17-2011
CHERYL COSTANZO et al., Plaintiffs and Appellants, v. SCOTT STERLING, Defendant and Respondent.
Cheryl Costanzo & Terri Scheid, in pro. per., for Plaintiffs and Appellants. Manatt, Phelps & Phillips, Robert H. Platt, Benjamin G. Shatz, Jessica Shpall Rosen; Law Offices of Douglas Walton and Douglas L. Walton for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC089446)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline A. Connor, Judge. Affirmed.
Cheryl Costanzo & Terri Scheid, in pro. per., for Plaintiffs and Appellants.
Manatt, Phelps & Phillips, Robert H. Platt, Benjamin G. Shatz, Jessica Shpall Rosen; Law Offices of Douglas Walton and Douglas L. Walton for Defendant and Respondent.
Plaintiffs and appellants Cheryl Costanzo (Costanzo), and her mother, Terri Scheid (Scheid), in propria persona, appeal a judgment following a grant of summary judgment in favor of defendant and respondent Scott Sterling.
Appellants' opening brief states the judgment being appealed from is the judgment entered April 22, 2010, pursuant to a motion for summary judgment filed on behalf of defendants Sterling and Pablo Dammicco. However, the record reflects the April 22, 2010 judgment is only in favor of Sterling. Codefendant Dammicco defaulted, and on April 22, 2010, the trial court set an order to show cause regarding default judgment as to Dammicco, to be heard May 27, 2010. In sum, Dammicco is not a party to this appeal.
Plaintiffs do not address the substance of the summary judgment ruling. Rather, they seek reversal of the judgment on the grounds the trial court failed to consider the following: (1) Scheid's untimely discovery motion/motion to continue the summary judgment hearing; (2) Scheid's untimely opposition to summary judgment, filed on the date of the hearing; and (3) Scheid's postjudgment motion for reconsideration.
All three motions were procedurally improper. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants' four-page opening brief does not take issue with the trial court's statement of facts. Therefore, we adopt the trial court's factual summary, as set forth in the order granting summary judgment, with minor changes. (Taus v. Loftus (2007) 40 Cal.4th 683, 690.)
This is a tragic case in which a young woman sustained a paralyzing injury. After "hanging out" with friends on the evening of October 14, 2005, Costanzo was dropped off by her friends at Jeff Nasch's house around 3:30 a.m. on October 15, 2005. After entering the house, Nasch made Costanzo a drink that he called a "voodka" which was his specialty. Costanzo did not see Nasch make the drink and did not know what was in it. After finishing the drink, Costanzo went to the bathroom feeling fine, but when she exited everything was spinning and she lay down on Nasch's bed. Costanzo admitted she did not see Sterling until after she had already consumed the drink and was resting on the bed. Prior to that point, she did not even know Sterling was in the house. Costanzo admitted Sterling had no role in preparing the drink and did not know what was in the drink. When asked, " 'Is it your opinion that during the period of time that you were at Jeff Nasch's residence on the morning of October 15, 2005 that Jeff Nasch placed some kind of illegal substance in your drink?' she answered, 'yes.' "
At dawn on October 15, 2005, Nasch drove Costanzo and Sterling to Pablo Dammicco's apartment. Although contending that Nasch was supposed to drive her home, Costanzo remained at Dammicco's apartment until around 6:00 p.m. After arriving, Nasch offered Costanzo a line of cocaine, which she voluntarily accepted. Nasch had the cocaine in his possession, offered it and made the lines for use. Sterling did not offer Costanzo drugs at any time during these events and never physically touched her.
Costanzo suffered her injuries at approximately 6:00 p.m., by jumping, falling, tumbling and/or crawling out of Dammicco's third story bathroom window and eventually falling to the pavement/ground below. In the fall, Costanzo injured her spinal cord and is paralyzed from the waist down.
2. Pleadings.
On October 12, 2006, plaintiffs filed suit against Sterling, Nasch and Dammicco. As against Sterling, the complaint set forth common law causes of action for general negligence, negligent infliction of emotional distress, battery, intentional infliction of emotional distress, and as well as a statutory claim for violation of the Drug Dealer Liability Act (Health & Saf. Code, §11700 et seq.).
Nasch apparently settled the suit for $850,000.
As the Supreme Court has emphasized, there is no independent tort of negligent infliction of emotional distress - instead, the tort is negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)
3. Sterling's motion for summary judgment.
On February 2, 2010, when the lawsuit was in its fourth year, Sterling moved for summary judgment on the following grounds: Costanzo's negligence and negligent infliction of emotional distress claims failed because Sterling did not owe Costanzo a duty and did not proximately cause her any harm; the battery claim failed because he never engaged in any harmful or offensive touching with her; and the intentional infliction of emotional distress claim failed because Sterling did nothing outrageous. On the statutory claim, Sterling moved for summary judgment on the grounds he never furnished drugs to Costanzo and further, she lacked standing to sue under the law because she admittedly used illegal drugs after commencing this action. Sterling also contended Scheid's statutory claim was meritless because there was no evidence he sold, administered or furnished drugs to Costanzo.
4. Costanzo's opposition papers; Costanzo contradicted her earlier testimony as to the time Sterling departed Dammicco's apartment and as to her motivation for climbing out of the third story window.
Costanzo's opposition papers included a responsive separate statement of disputed material facts. Of the 41 material facts set forth in Sterling's moving separate statement, 38 were undisputed by Costanzo.
Costanzo admitted, inter alia: Sterling did not know what was in the drink which Nasch had prepared for her; she accepted cocaine from Nasch; she did not see Nasch obtain cocaine from Sterling; and Sterling did not touch Costanzo at any time on October 15, 2005.
Two of Costanzo's alleged disputed facts pertained to the time Sterling departed Dammicco's apartment. Facts number 36 and 37 are that (1) Sterling left Dammicco's apartment early in the morning on October 15, 2005, and did not return that day; and (2) when Sterling departed Dammicco's apartment that morning, Costanzo remained in the apartment. Costanzo attempted to dispute these two facts by asserting she had "no recollection" of Sterling's leaving Dammicco's apartment on October 15, 2005.
The third "disputed" fact - as the sun was rising, Costanzo, Nasch and Sterling got into Nasch's vehicle and drove to Dammicco's home, was not actually disputed. Costanzo merely added that she got into the vehicle because Nasch agreed to take her home. Thus, Costanzo's factual "dispute" merely was an explanation of why she got into Nasch's car.
In opposing summary judgment, Costanzo relied on other evidence which she did not include in her opposing separate statement. Costanzo cited her deposition testimony that she ran into Dammicco's bathroom because Nasch, Dammicco and Sterling were "playing with bamboo sticks, and then they were telling me they were going to shove them up my ass."
Although Costanzo now claimed Sterling was involved in the "bamboo incident," earlier in the litigation she filed a declaration in which she corroborated Sterling's declaration that he left Dammicco's apartment early on the morning on October 15, 2005 and did not return to the apartment that day. On November 7, 2006, Costanzo filed a declaration in support of an ex parte application for prejudgment attachment, in which she stated in pertinent part: On October 15, 2005, "at about 6:00 a.m., after about an hour an half [sic] after I arrived at defendant Dammicco's apartment, with [Nasch] and [Sterling], . . . both Defendants [Nasch] and Sterling left; [¶] 12. That, following their departure I began to act irrationally and started throwing planted pots and other things off of the apartment's 3rd story balcony. On information and belief I became even more paranoid about my surroundings and eventually ran into a bathroom, locked the door and feeling an urgent need to escape, climbed out of the 3rd story apartment bathroom window and on information and belief, jumped into a tree whereby I climbed to the top of the roof of the adjoining apartment building. In my apparent need to attempt to 'escape,' I tried to climb down a tree on the other side of the building, and fell to the concrete walkway below."
Thus, Costanzo previously admitted Sterling left Dammicco's apartment in the early morning hours of October 15, 2005, and Costanzo earlier had attributed her climbing out the 3rd story bathroom window to her paranoia, not to a threat by Sterling or his codefendants to violate her with bamboo sticks.
Costanzo's mother, who was in propria persona at the time of the summary judgment motion, did not submit written opposition to the motion for summary judgment until the day of the hearing.
5. Trial court's ruling.
On April 22, 2010, the trial court granted Sterling's motion for summary judgment. The trial court ruled, inter alia:
"In light of [the] undisputed facts and admissions, COSTANZO cannot establish a prima facie case for violation of the Drug Dealer Liability Act. Further, plaintiff SCHEID has failed to establish the requisite elements for standing to sue under the Drug Dealer Liability Act, Health & Safety Code §11705(b). The intentional infliction of emotional distress, negligence and negligent infliction of emotional distress claims similarly fail because there is no evidence that STERLING assumed any duty towards or committed any wrongful act that proximately caused COSTANZO's injuries. Finally, the battery claim fails because there is no dispute that STERLING did not commit any intentional act resulting in harmful or offensive contact with COSTANZO. Again, there is no dispute that STERLING did not offer or give drugs to COSTANZO at any time and never touched her.
"The Court notes that Ms. Scheid is representing herself in propria persona following a substitution of attorney on November 12, 2009 and she has submitted no written opposition to this motion. A party's failure to file opposition can be considered as an admission that the motion is meritorious and the Court can refuse to hear oral argument from such party because it is improper to introduce legal theories without notice to opposing counsel and the court. [Citation.]
"The burden then shifts to plaintiffs to establish a triable issue of one or more material facts. In her opposition, COSTANZO argues that her factual allegations are supported by her deposition testimony that, 'The next thing I remember is [Sterling] and [Nasch] and [Dammicco] all playing with bamboo sticks, and then they were telling me they were going to shove them up my ass.'. . . And once they got very close to me is when I remember running into the bathroom. . . .
"It is undisputed that COSTANZO suffered her injuries at approximately 6:00 p.m., by jumping, falling, tumbling and/or crawling out of Dammicco's third story bathroom window and eventually falling to the pavement/ground below. (Fact No. 35.) COSTANZO insinuates in her opposition and opposing declaration that she ran to the bathroom and eventually crawled out the window in response to statements or threats by Nasch, STERLING and Dammicco to physically violate her with bamboo sticks. However, STERLING states in his declaration that he left Dammicco's apartment 'early in the morning on October 15, 2005 and did not return to his apartment that day.' (Fact No. 36.) Plaintiff's response that she has no recollection of STERLING leaving Dammicco's apartment is not enough to dispute that evidence. As such, even if the events with the bamboo sticks occurred, STERLING was not present for at least several hours before plaintiff sustained her injuries. [¶] Therefore, STERLING'S motion for summary judgment is GRANTED."
6. Plaintiffs' three additional filings.
On April 20, 2010, two days before the summary judgment hearing, Scheid, who had failed to file any opposition, filed a discovery "MOTION TO STRIKE AND COMPEL [STERLING] TO ANSWER QUESTIONS IN DEPOSITION." Scheid also requested a postponement of the summary judgment hearing, "presently scheduled for April 22, 2010, to a time to be later determined based on the progress" of Sterling's additional deposition.
On the date of the summary judgment hearing, Scheid also filed an untimely "MOTION FOR OPPOSITION TO SUMMARY JUDGMENT." The belated opposition papers were not before the trial court at the time it ruled on the summary judgment. As indicated, at the April 22, 2010 hearing, the trial court noted "Scheid . . . has submitted no written opposition to this motion."
On April 30, 2010, eight days after the trial court entered judgment on the summary judgment, Scheid filed a motion for reconsideration of the ruling granting Sterling's motion for summary judgment.
On June 3, 2010, the trial court denied Scheid's motion for reconsideration on the ground it lacked jurisdiction to grant reconsideration following the grant of summary judgment.
On June 3, 2010, with respect to the default against Dammicco, the trial court stated, "As to Dammicco, I don't see how I can proceed on a default when there's no underlying liability." The trial court indicated a default judgment against Dammicco "is simply precluded by the evidence and findings of the summary judgment."
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On June 22, 2010, plaintiffs filed a timely notice of appeal from the April 22, 2010 judgment.
CONTENTIONS
Plaintiffs do not address the substance of the summary judgment ruling. Rather, plaintiffs seek reversal of the judgment on the grounds the trial court failed to consider the following: (1) Scheid's motion to strike and compel Sterling to answer questions in deposition; (2) Scheid's opposition to summary judgment; and (3) Scheid's request for reconsideration.
DISCUSSION
1. No merit to plaintiffs' contentions the trial court erred in granting summary judgment without reconsidering the case.
a. Eleventh hour discovery motion/request for continuance.
As indicated, on April 20, 2010, two days before the summary judgment hearing, Scheid, who had failed to file any opposition, filed a discovery "MOTION TO STRIKE AND COMPEL [STERLING] TO ANSWER QUESTIONS IN DEPOSITION." Scheid also requested a postponement of the summary judgment hearing, "presently scheduled for April 22, 2010, to a time to be later determined based on the progress" of Sterling's additional deposition.
We note that by April 20, 2010, the action, commenced on October 12, 2006, had been pending for 3½ years. Appellants do not explain why discovery was incomplete at that stage of the proceedings.
Moreover, the statutory scheme requires an application to continue a summary judgment motion to obtain necessary discovery to be made "on or before the date the opposition response to the motion is due." (Code Civ. Proc., § 437c, subd. (h).) Opposition papers are due "not less than 14 days preceding" the date of the summary judgment hearing. (Code Civ. Proc., § 437c, subd. (b)(2).) Therefore, the trial court properly denied Scheid's belated discovery motion/request for a continuance, which Scheid filed two days before the hearing.
b. Untimely opposition to summary judgment, filed on the date of the hearing.
On April 22, 2010, the date of the summary judgment hearing, Scheid filed her opposition to Sterling's motion for summary judgment. As discussed, Scheid's opposition was due "not less than 14 days preceding" the date of the summary judgment hearing. (Code Civ. Proc., § 437c, subd. (b)(2).) Due to Scheid's extreme delay in filing her opposition, her papers were not before the trial court at the time it heard the matter, and the court noted Scheid "has submitted no written opposition to this motion."
Due to Scheid's failure to file a timely opposition, she cannot be heard to complain the trial court ruled on the summary judgment motion without considering her opposition papers.
c. Scheid's improper request for reconsideration.
On April 30, 2010, eight days after the trial court entered judgment on the summary judgment, Scheid filed a motion for reconsideration of the ruling granting Sterling's motion for summary judgment.
"It is well settled that entry of judgment divests the trial court of authority to rule on a motion for reconsideration. (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237-1238.)" (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)
Accordingly, the trial court properly denied Scheid's motion for reconsideration on the ground it lacked jurisdiction to entertain the motion.
DISPOSITION
The judgment in favor of Sterling is affirmed. No costs are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
ALDRICH, J.