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Moore v. Rimmer

California Court of Appeals, Sixth District
Jul 8, 2008
No. H031632 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THOMAS EUGENE MOORE, Plaintiff and Appellant, v. RICH RIMMER, et al., Defendants and Respondents. H031632 California Court of Appeal, Sixth District July 8, 2008

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. M70259.

Bamattre-Manoukian, Acting P.J.

I. INTRODUCTION

This action arises from appellant Thomas Eugene Moore’s incarceration at Salinas Valley State Prison. Appellant, a self-represented litigant, filed a tort action alleging that he requires a special religious diet but respondents failed to transfer him to another prison facility that is equipped to accommodate his religious dietary needs. Respondents Edward Caden, Nola Grannis, Anthony Lamarque, Richard Rimmer, Charles Watson, and Alan Williams subsequently filed a motion for summary judgment, which the trial court granted on the ground that respondents did not have a mandatory duty to transfer an inmate to another facility to accommodate the inmate’s religious diet.

On appeal, appellant contends the trial court erred in granting summary judgment because former California Code of Regulations, title 15, section 3054, subdivisions (a) and (b), impose a mandatory duty to transfer an inmate, and triable issues of material fact exist regarding respondents’ failure to transfer him. To the extent he failed to state a claim or failed to show a triable issue of material fact, appellant asserts that the trial court abused its discretion by failing to give him the opportunity to amend his complaint. Appellant also argues that the trial court abused its discretion in denying his motion to consolidate and his motions to compel answers to interrogatories.

For reasons that we will explain, we conclude that respondents did not have a duty to transfer appellant to another facility that is equipped to accommodate his religious dietary needs and that the trial court did not abuse its discretion in failing to give appellant leave to amend the complaint. In view of our conclusion that the trial court did not err in granting summary judgment, we need not determine whether the trial court abused its discretion in denying appellant’s motion to consolidate, or in denying his discovery motions. Therefore, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint

In his complaint, filed May 17, 2004, appellant alleges that he “consumes a religious diet of religiously slaughtered meat, . . . halal meat, and it is against [his] religious tenets of Islam to be a vegetarian. . . .” Appellant asserts that he “cannot accept irreligiously slaughtered meat meals or vegetarian meals without violating the religious dietary laws of Islam.” According to appellant, “he has not eaten the meat that is served to him by the defendants . . . since arriving at the Salinas Valley State Prison . . . on June 19, 2001, because the meat that is served is irreligiously slaughtered USDA meat which is against [his] Islamic religion to consume.” Appellant claims that he “suffers extreme hunger and stomac[h] pains, weakness, weight loss, dizziness, headaches and hallucinations due to [his] inability to consume the meat” served at the prison. Appellant also asserts that a doctor “has recommended and has informed the prison dieticians defendants Much and Watson to consult” with appellant “and provide dietician therapy” to him, but the dieticians “have continuously ignored and refused to see” him or “aid [him] with his dietary needs.”

Appellant named the following defendants in the caption of his complaint: Rick Rimmer, Acting Director of California Department of Corrections; N. Grannis, Chief, Inmate Appeals Branch of California Department of Corrections; A. Lamarque, Warden of Salinas Valley State Prison; A. Williams, Acting Captain of Salinas Valley State Prison; E. Caden, Chief Deputy Warden of Salinas Valley State Prison; J. Barrett, Supervising Cook of Salinas Valley State Prison; Barnes, Cook I of Salinas Valley State Prison; D. Much, Dietician of Salinas Valley State Prison; C. Watson, Dietician of Salinas Valley State Prison; and Does 1 through 60, inclusive.

Appellant alleges that he was denied a religious diet or a transfer to another facility to accommodate his religious dietary needs pursuant to former California Code of Regulations, title 15, section 3054, subdivision (b), which states: “Inmates with special religious dietary needs may be transferred to another facility that is equipped to accommodate them.” (Former Cal. Code Regs., tit. 15, § 3054, subd. (b).) Appellant asserts that the “California Medical Facility-Vacaville” is able to accommodate his religious dietary needs.

In the complaint, appellant alleges two causes of action for negligence and “intentional tort,” and he seeks, among other things, monetary damages and “other and further relief as may be proper. . . .”

B. Appellant’s Discovery Motions

After respondents Lamarque, Rimmer, Grannis, and Williams filed an answer to the complaint, appellant propounded two sets of interrogatories on respondent Rimmer. Unsatisfied with respondent Rimmer’s responses, appellant filed two motions to compel answers without objections. The first motion pertained to five interrogatories in which appellant sought the full names of defendant J. Barrett and defendant Barnes; their contact information, including residential and employment addresses and phone numbers; and information regarding whether defendant Barnes resigned from employment at Salinas Valley State Prison, including the date and reasons for his resignation. The second motion pertained to one interrogatory in which appellant sought the names of, and addresses and phone numbers for, persons “authorized to accept the process service of a Monterey Superior Court Civil Complaint upon and/or on behalf of” defendants Edward Caden, J. Barrett, and Barnes.

Respondent Rimmer opposed the motions. In orders filed March 3, 2005, and May 5, 2005, the trial court denied the motions.

C. Appellant’s Motion to Consolidate

After respondents Watson and Caden filed answers to the complaint, appellant filed a motion on January 3, 2007, to consolidate this case (case No. M70259) with another civil case that he had filed in Monterey County Superior Court (case No. M77431) and for leave to file an amended complaint that would incorporate the allegations of both cases into one pleading. Opposition was filed in each case by some of the defendants.

Appellant filed a notice of appeal in case No. M77431 (Moore-Ali v. Woodford (H031346, app. pending).) The defendants who, at some point, were simultaneously named in both case No. M77431 and case No. M70259 include Lamarque, Grannis, Williams, Much, and Watson.

On our own motion, we take judicial notice of the opposition filed in case No. M77431 on February 7, 2007. (Evid. Code, § 452, subd. (d).)

In a written “Ruling,” dated February 27, 2007, in case No. M77431, the trial court granted summary judgment in favor of certain defendants in that case and, in light of that ruling, denied appellant’s motion to consolidate the cases and for leave to file an amended complaint.

By order filed May 6, 2008, we granted respondents’ request to take judicial notice of the trial court’s February 27, 2007 written “Ruling” in case No. M77431.

D. Respondents’ Motion for Summary Judgment

On January 16, 2007, respondents Caden, Grannis, Lamarque, Rimmer, Watson, and Williams filed a motion for summary judgment. Respondents argued (1) appellant failed to comply with the pre-filing requirements for claims against state employees before filing his civil action against Grannis, Rimmer, and Watson, or before seeking damages from Watson for allegedly ignoring and refusing to consult with appellant regarding his religious dietary needs; (2) appellant failed to exhaust his administrative remedies through the prison grievance process; (3) appellant’s complaint failed to state a claim because he did not identify a statute imposing a mandatory duty on respondents; (4) appellant failed to sufficiently allege the personal involvement of the respondents in the actions forming the basis for his claims; and (5) respondents were entitled to immunity pursuant to Government Code section 820.2 because they had the discretion under former California Code of Regulations, title 15, section 3054, subdivision (b), to grant or deny an inmate’s transfer to another facility that can accommodate an inmate’s dietary preferences.

Government Code section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Appellant opposed the motion, contending (1) he complied with the pre-filing requirements for a claim against state employees before filing his civil action against Grannis, Rimmer, and Watson and regarding a dietary counseling claim; (2) his complaint was not barred for failure to exhaust administrative remedies; (3) he alleged a statutory basis for tort liability against respondents because former California Code of Regulations, title 15, section 3054, subdivision (b), imposed a specific duty on respondents to provide him with a religious diet or to transfer him; (4) former California Code of Regulations, title 15, section 3054, subdivision (a), requires “[e]ach facility” to “make reasonable efforts, as required by law, to accommodate those inmates who have been verified to require special religious diets,” and he showed that respondents were directly involved in making dietary and housing decisions for him; and (5) respondents were not entitled to qualified immunity because providing a religious diet or transfer for a religious diet, as required by former California Code of Regulations, title 15, section 3054, subdivision (b), is a ministerial, not discretionary, act and duty, and respondents failed to provide proof that their acts and omissions were discretionary acts.

The trial court signed an “Order,” dated April 9, 2007, granting respondents’ motion for summary judgment. The trial court explained: “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 . . . .’ (Code Civ. Proc., § 437c, subd. (c).) Plaintiff has cited none, and the Court is unaware of any statutory authority imposing a mandatory duty on Defendants to transfer an inmate to another facility in order to accommodate the inmate’s religious diet.”

On April 25, 2007, appellant filed a notice of appeal, purportedly appealing from a final judgment in the action. On April 26, 2007, judgment was entered in favor of respondents Caden, Grannis, Lamarque, Rimmer, Watson, and Williams. On May 25, 2007, appellant filed an amended notice of appeal.

We observe that appellant’s amended notice of appeal, while purportedly appealing from the “final judgment,” refers to the trial court’s order granting summary judgment. We will liberally construe appellant’s amended notice of appeal as applying to the judgment. Respondents argued the merits of the appeal and have not sought dismissal, and thus they would not be misled or prejudiced by interpreting the amended notice of appeal to apply to the existing judgment. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202-203.)

III. DISCUSSION

On appeal, appellant contends (1) the trial court erred in granting summary judgment and abused its discretion in failing to allow him to amend the complaint to overcome any deficiencies, (2) the trial court abused its discretion in failing to allow him to amend and consolidate his complaints in this case and in case No. M77431, and (3) the trial court abused its discretion in denying his motions to compel answers to interrogatories. As we will explain, the trial court did not err in granting summary judgment.

A. Respondents’ Motion for Summary Judgment

1. Standard of Review

The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court’s stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

On appeal from a summary judgment, we apply the same three-step process as the trial court. “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) We then examine the moving party’s motion. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) Next, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)

In determining whether the parties have met their respective burdens, the court must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

2. The Parties’ Contentions

In his opening brief on appeal, appellant contends the trial court erred in granting summary judgment. First, appellant argues that former California Code of Regulations, title 15, section 3054 et seq., and specifically subdivisions (a) and (b) of former section 3054, impose a mandatory duty on respondents to transfer him to another facility to accommodate his religious dietary needs. Second, appellant asserts that there were two triable issues of material fact: “1) Whether the appellees were negligent by failing to transfer the appellant to a facility that is equipped to accommodate the appellant’s religious dietary needs when the appellees were not able to accommodate the appellant’s religious dietary needs, . . . and 2) Whether the appellees’ failure to accommodate or transfer the appellant caused an intentional tort against the appellant by failing, for over 2 years to provide appellant with a religious diet or a transfer to a facility that is equipped to accommodate the appellant’s religious dietary needs that caused physical and mental damages to the appellant.”

Former California Code of Regulations, title 15, section 3054 stated: “(a) Each facility shall make reasonable efforts, as required by law, to accommodate those inmates who have been verified to require special religious diets. [¶] (1) Any inmate who claims to require a special religious diet shall be responsible for informing their facility’s Chaplain or religious representative of their faith. The Chaplain or religious representative shall: [¶] (A) Verify the inmate’s special religious dietary needs by contacting the religious organization to which the inmate claims to be an observant member. [¶] (B) Maintain and provide the Food Manager with a list of those inmates who have been verified to require special religious diets and what the special religious diets consist for those inmates. [¶] (2) Any religious organization may contract with the Department to provide their inmate members with religious diets provided that such a contract shall not result in any additional costs to the Department. [¶] (b) Inmates with special religious dietary needs may be transferred to another facility that is equipped to accommodate them. [¶] (c) Inmates with special religious dietary needs that prohibit them from consuming an item(s) from the daily scheduled meal may be accommodated by being provided another item(s) from that same days’ scheduled meal that is consistent with their dietary need.” (Former Cal. Code Regs., tit. 15, § 3054, subsequently amended operative April 24, 2006.)

Respondents contend that former California Code of Regulations, title 15, section 3054, subdivision (b), gives them the discretion to grant or deny appellant a transfer. In the absence of an allegation that there is a statutory basis for a mandatory duty to transfer appellant to another prison that could accommodate his special diet request, respondents argue that appellant fails to state a claim for tort liability against them. Respondents also assert that appellant failed to comply with the pre-filing requirements for a claim against state employees before filing this civil action against Grannis, Rimmer, and Watson or before seeking damages from Watson for allegedly ignoring and refusing to consult with appellant regarding his religious dietary needs; appellant failed to exhaust his administrative remedies; appellant failed to allege sufficient facts showing their personal involvement in the actions that purportedly led to his injuries; and they were entitled to immunity pursuant to Government Code section 820.2 because former California Code of Regulations, title 15, section 3054, subdivision (b), gives them discretion to grant or deny appellant’s request for a transfer to another facility.

In reply, appellant asserts that he complied with the pre-filing requirements for a tort claim before filing this civil action against Watson; he exhausted his claims though the prison grievance process; Caden, Much, and Watson knew about the physical and mental problems he was having due to the denial of a religious diet and transfer, and they were involved in the denial of medical treatment and care to him; former California Code of Regulations, title 15, section 3054, subdivisions (a) and (b), require either a special religious diet at the prison or a transfer to another facility; and respondents are not entitled to “discretionary-act immunity.”

Because we find the issue of duty to be dispositive, we turn to that issue first and do not reach the parties’ other contentions.

3. Government Claims Act and Tort Claims

The Government Claims Act (Gov. Code, § 810 et seq.) governs claims for money or damages against public entities and their employees. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.) Government Code section 820, subdivision (a), states that “[e]xcept as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov. Code, § 820, subd. (a).) “Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) . . . .’ [Citation.]” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Accordingly, we apply ordinary and general principles of tort law in analyzing a plaintiff’s claims. (See Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715-716.)

The California Supreme Court now refers to title 1, division 3.6, parts 1 through 7 of the Government Code (§ 810 et seq.) as the Government Claims Act. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-742 & fn. 7.)

“ ‘A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is “damnum absque injuria” -- injury without wrong. [Citations.]’ [Citation.].” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.) To prove negligence, the plaintiff must show, among other things, that the defendant had a duty to use due care. (Ibid.) “The existence of a legal duty is a question of law for the court. [Citation.]” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188-1189.)

4. Analysis

We construe appellant’s complaint as seeking relief for respondents’ alleged failure to transfer him to another facility that is equipped to accommodate his religious dietary needs. While appellant asserts in the complaint that he was denied a religious diet, that prison dieticians ignored him, and that he was denied a transfer to another facility, only the latter issue—the failure to transfer—is attributed to respondents’ alleged negligence and “intentional tort.” For example, in the first cause of action for negligence, appellant alleges defendants “negligently . . . failed to adhere to and follow” former California Code of Regulations, title 15, section 3054, subdivision (b), when he notified them by grievance that he requires a special religious diet or transfer, “such as to cause the defendants, and each of them to fail to transfer the plaintiff to the CMF-Vacaville prison facility that is equipped to accommodate the plaintiff’s special religious dietary needs, knowing prior thereto that said defendants negligence would cause the plaintiff not to be transferred to a facility that is equipped to accommodate his special religious dietary needs. . . .” Similarly, in the second cause of action for “intentional tort,” appellant alleges that defendants “intentionally caused physical and mental injuries” to him by their “failure to adhere to and follow” former California Code of Regulations, title 15, section 3054, subdivision (b), and their denial of his grievance, “such as to cause the defendants, and each of them to fail to transfer the plaintiff to the CMF-Vacaville prison facility that is equipped to accommodate the plaintiff’s special religious dietary needs. . . .”

In both causes of action, appellant alleges that subdivision (b) of former California Code of Regulations, title 15, section 3054 imposes an obligation on respondents to transfer him. During the time period relevant to appellant’s complaint, former California Code of Regulations, title 15, section 3054, subdivision (b), stated: “Inmates with special religious dietary needs may be transferred to another facility that is equipped to accommodate them.” (Former Cal. Code Regs., tit. 15, § 3054, subd. (b).) However, as provided by the regulations, “ ‘may’ is permissive” while “ ‘shall’ is mandatory . . . .” (Cal. Code Regs., tit. 15, § 3000.5, subd. (c).) Therefore, while respondents had the right to transfer appellant to another facility that was equipped to accommodate his religious dietary needs, they did not have a duty to do so under former California Code of Regulations, title 15, section 3054, subdivision (b). (See McCarthy v. Frost (1973) 33 Cal.App.3d 872, 874-875 [use of “may” in Vehicle Code section 2412 creates the right, but not the duty, of state highway patrol to investigate accidents]; accord Williams v. State of California (1983) 34 Cal.3d 18, 24 & fn. 4.)

We also note that while “the courts and the Legislature may create a negligence duty of care, . . . an administrative agency cannot independently impose a duty of care if that authority has not been properly delegated to the agency by the Legislature.” (California Service Station Etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1175.) In view of our conclusion that the language of former California Code of Regulations, title 15, section 3054, subdivision (b), does not impose a duty on respondents to transfer appellant, we do not determine whether the Legislature created a duty of care in the Penal Code provisions authorizing subdivision (b).

On appeal, appellant argues that subdivision (a) of former California Code of Regulations, title 15, section 3054 imposes a duty on defendants to transfer him. We do not agree with appellant that subdivision (a) of former California Code of Regulations, title 15, section 3054, imposed a duty on respondents to transfer him to another facility that is equipped to accommodate his religious dietary needs. Former subdivision (a) provided, in part, that “[e]ach facility shall make reasonable efforts, as required by law, to accommodate those inmates who have been verified to require special religious diets.” (Former Cal. Code Regs., tit. 15, § 3054, subd. (a).) Assuming this subdivision imposed a duty on respondents to make efforts to accommodate an inmate’s special religious diet, this subdivision did not impose the specific obligation to transfer an inmate as part of those efforts. Moreover, as we have explained, subdivision (b) of former California Code of Regulations, title 15, section 3054 makes a transfer to another facility permissive and does not create a duty to do so.

Accordingly, because neither subdivision (a) nor subdivision (b) of former California Code of Regulations, title 15, section 3054 imposes a duty on respondents to transfer appellant to another facility that is equipped to accommodate his religious diet, we conclude that appellant failed to state a cause of action in his complaint for negligence or for “intentional tort.”

5. Opportunity to Amend Pleading

On appeal, appellant argues that he should have been given the opportunity to amend his pleading pursuant to Code of Civil Procedure section 473, subdivision (a)(1). Appellant contends: “If the court found that the appellant had failed to state a claim or a cause of action or failed to show that there is a triable issue as to any material fact, then the court should give the appellant the opportunity to overcome such deficiencies by allowing the appellant to amend the complaint. [¶] Therefore, the court abused its discretion when it failed to give the appellant the opportunity to amend the complaint in order to overcome the deficiencies that the court found in the appellant’s complaint.”

Code of Civil Procedure section 473, subdivision (a)(1), states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

We understand appellant’s argument on appeal as seeking leave to amend the complaint to overcome any pleading deficiency that was raised by respondents’ motion for summary judgment.

“ ‘A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint. [Citation.]’ ” (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117-1118.) When a defendant uses the motion to test whether the complaint states a cause of action, the motion is “ ‘tantamount’ ” to a motion for judgment on the pleadings. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1491; American Airlines, Inc. v. County of San Mateo, supra, 12 Cal.4th at p. 1118 [a motion for summary judgment that is used to test the sufficiency of the complaint is treated as a demurrer or a motion for judgment on the pleadings].)

“Where a motion for summary judgment is in effect a motion for judgment on the pleadings, the court may grant a plaintiff leave to amend the complaint. [Citation.]” (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1817; cf. Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1773 [leave to amend may be denied if proposed amendment fails to state a cause of action].) The plaintiff has the burden of proving a reasonable possibility that the defects of the complaint can be cured. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Newell v. State Farm General Ins. Co. (2004) 118 Cal.App.4th 1094, 1100.) We review the trial court’s decision to grant or deny leave to amend for abuse of discretion. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 314.)

On appeal, appellant does not show how he would have amended the complaint to cure the deficiencies of the pleading. Consequently, we find that the trial court did not abuse its discretion in failing to allow appellant an opportunity to amend the complaint.

B. Motion to Consolidate and Motions to Compel Discovery

In view of our conclusion that summary judgment was properly granted in respondents’ favor in this case, we need not address whether appellant’s motion to consolidate this case with case No. M77431, and for leave to file an amended complaint incorporating the allegations of both cases, should have been granted.

As to appellant’s contention that the trial court abused its discretion in denying his two motions to compel answers to interrogatories, we observe that appellant does not indicate on appeal how the proposed discovery, which pertained to certain defendants’ full names, contact information, employment information, and agents authorized to accept service, would affect the disposition of respondents’ summary judgment motion regarding the absence of a duty. Generally, discovery orders are not appealable. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1040.) Such orders may be reviewed on appeal from a final judgment. (Schaefer v. Manufacturers Bank (1980) 104 Cal.App.3d 70, 74.) However, “to obtain a reversal of a judgment on appeal on the ground of erroneous discovery rulings, appellant must demonstrate the rulings were so prejudicial as to constitute a miscarriage of justice. [Citations].” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1085.) Appellant has not met this burden here, where he fails to show that the denials of his discovery motions affected his ability to demonstrate respondents owed him a tort duty.

We also observe that appellant did not seek a continuance of the motion for summary judgment for necessary discovery or other order under Code of Civil Procedure section 437c, subdivision (h).

IV. DISPOSITION

The judgment is affirmed.

WE CONCUR: Mcadams, J., Duffy, J.

We note that the order denying appellant’s motion to consolidate should have also been filed in case No. M70259. (Cal. Rules of Court, rule 3.350(c) [an order regarding a motion to consolidate “must be filed in each case sought to be consolidated”].)


Summaries of

Moore v. Rimmer

California Court of Appeals, Sixth District
Jul 8, 2008
No. H031632 (Cal. Ct. App. Jul. 8, 2008)
Case details for

Moore v. Rimmer

Case Details

Full title:THOMAS EUGENE MOORE, Plaintiff and Appellant, v. RICH RIMMER, et al.…

Court:California Court of Appeals, Sixth District

Date published: Jul 8, 2008

Citations

No. H031632 (Cal. Ct. App. Jul. 8, 2008)