Opinion
F060472
01-31-2012
ARTHUR SEMENDINGER Plaintiff and Respondent, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.
Kamala D. Harris, Attorney General, Alberto L. Gonzalez, Acting Assistant Attorney General, Steven M. Gevercer and William A. Krabbenhoft, Deputy Attorneys General, for Defendants and Appellants. H. F. Layton Law Office and H. F. Layton for Plaintiff 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08CECG03039)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Donald R. Franson, Jr., Judge.
Kamala D. Harris, Attorney General, Alberto L. Gonzalez, Acting Assistant Attorney General, Steven M. Gevercer and William A. Krabbenhoft, Deputy Attorneys General, for Defendants and Appellants.
H. F. Layton Law Office and H. F. Layton for Plaintiff and Respondent.
This is an appeal from a default judgment entered against two supervising correctional officers at the prison where plaintiff and respondent Arthur Semendinger was an inmate. Defendants and appellants Gregory Mills and Daniel May contend the trial court abused its discretion in denying their motion to set aside their defaults and in failing to address on the merits their new trial motion. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Respondent was an inmate at Pleasant Valley State Prison (the prison). In June 2007, he developed an ear infection. Over the course of the next 18 months, respondent struggled to obtain medical care for the ear infection but, according to the complaint, was denied effective care. As a result, the infection spread into the bones of the skull and resulted in the necessity for a radical mastoidectomy. During the period between the initial infection and the surgery, respondent was in pain and suffered discharges from his ear. His hearing in his right ear is permanently impaired.
Respondent, in propria persona, sued the California Department of Corrections and Rehabilitation, the warden, and the chief medical officer, together with doctors, nurses, and prison staff alleged to be responsible for providing or obtaining adequate medical care for respondent. Some defendants have been dismissed from the action and the matter is proceeding as to others. This appeal involves two defendants who were supervisory corrections staff, and our summary of the case will exclude the other defendants.
Defendant and appellant Mills was a sergeant and is now a lieutenant on the corrections officer staff at the prison. Defendant and appellant May is a sergeant on the staff. The complaint alleged appellants violated respondent's federal rights to medical treatment and access to the courts, were negligent per se, and intentionally inflicted emotional distress on respondent.
The summons and complaint were served upon appellants by two of respondent's fellow prisoners. In the case of Mills, on September 28, 2008, Tony Tafoya handed an envelope containing the summons and complaint to Mills and informed him of the contents of the envelope. At that point, Mills let go of the envelope and refused to take it. Tafoya left the papers nearby and mailed a second set, as directed by Mills, to the prison litigation office. As to May, on September 24, 2008, Donald O'Brien attempted to hand an envelope containing the summons and complaint to May, telling him what the envelope contained. May refused to accept the envelope. O'Brien left the envelope on the ground and mailed a second set to the prison litigation office, as May had directed him to do.
On October 27, 2008, respondent filed a request for entry of default against May. The clerk entered default against him on the same date. On October 31, 2008, respondent filed a request for entry of default against Mills. The clerk entered default against him on the same date. On April 27, 2009, appellants, represented by a deputy attorney general, filed motions "to set aside default or, in the alternative, [for] discretionary relief from default." (Boldface & capitalization omitted.) In identical declarations in support of the motions, appellants stated that they were on duty when an inmate "approached ... with papers." They told the inmate they were not allowed "to accept anything from an inmate, and that any papers for me needed to be sent to the Litigation Coordinator." They stated the inmate did not tell them they were being served with a lawsuit and that they did not know about respondent's lawsuit "at that time." Both declarations stated: "I did not avoid service and am not guilty of 'inexcusable neglect' as it is CDCR policy not to accept anything from an inmate for many legitimate policy reasons." Respondent submitted declarations in opposition, including expanded declarations describing the circumstances of personal service of the summons and complaint on appellants.
Prior to the June 16, 2009, hearing on the motions (and the pending demurrers of other defendants), the court issued an extensive tentative ruling to deny appellants' motions. The court concluded, based upon a weighing of the declarations before it, that the motions were not filed within a reasonable time and, in addition, that appellants had failed to establish the statutory conditions for relief from default. At the hearing, appellants' counsel requested and was granted a continuance so he could submit further declarations to address the court's conclusions in the tentative ruling. Prior to the continued hearing, the court issued a new tentative ruling addressing the additional declarations and again denying the motions. At a hearing on August 18, 2009, the court denied both appellants' motions for relief from default and to vacate the default.
The court heard respondent's evidence in support of entry of judgment on December 11, 2009. (Respondent was now represented by his present counsel.) The court took the matter under submission and subsequently granted judgment in the amount of $200,000 against appellants. Judgment was entered. Appellants filed a timely notice of intention to move for new trial. Although the motion set forth a variety of statutory grounds for new trial (see Code Civ. Proc., § 657), as orally presented to the court and as relevant to this appeal, the motion contended the award of damages was excessive (see id., subd. 5) and that the decision was, in the statutory language, "against law" (see id., subd. 6). The court denied the motion for new trial. Citing Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 386, the trial court determined that appellants, as defendants against whom default had been entered, were not entitled to move for a new trial. Addressing the merits of the new trial motion, the trial court determined that the evidence supported the judgment in the amount awarded and that the decision was not "against law," as that phrase is used in the statute. The court modified the judgment to specify that the total judgment was for $200,320, which included $190,000 in damages, $10,000 in attorney fees, and $320 in costs. Judgment was entered accordingly.
DISCUSSION
Appellants contend the trial court abused its discretion in denying their motion to set aside the default. As set forth in the factual summary, the trial court concluded the declarations of the inmates who served papers upon appellants were more credible than the declarations submitted by appellants. Without any citation of authority whatsoever, appellants contend this conclusion is an abuse of discretion because the inmates— "convicted felons whose veracity must be questioned like they would in instructions to a jury"—were not to be believed. There is, however, no legislative bar to testimony under oath by a convicted felon; nor, of course, is there any rule of law that a convicted felon's sworn statements must be deemed false. Evidence Code section 788 often permits evidence of a prior felony conviction for impeachment of a witness's credibility, but it does not prohibit a finder of fact from determining that such testimony is, nonetheless, credible.
In this case, the finder of fact—the trial court—obviously was aware that respondent's process servers were his fellow inmates. The court stated in detail its evaluation of the relative credibility of the declarations of those witnesses and of appellants. The court's credibility determination was well-supported by the evidence and does not demonstrate an abuse of discretion. To the extent appellants contend the court misconstrued their declarations, we have reviewed the declarations and we conclude the trial court's interpretation of the declarations was well within the bounds of reason. Appellants have not established that the trial court abused its discretion in denying the motions to set aside the defaults.
Appellants also appear to contend that their default resulted from mistake or excusable neglect as a matter of law because "they were not told they were being served with a lawsuit." The trial court found, on substantial evidence, that appellants were told exactly that. Accordingly, there is no factual predicate for appellants' contention.
Appellants also contend the trial court erred in denying their motion for new trial. Case law is conflicting on the right of a defaulted defendant to make a new trial motion. (See Misic v. Segars (1995) 37 Cal.App.4th 1149, 1154 [noting conflict but not deciding issue].) The Supreme Court has reserved judgment on the issue. (See Carney v. Simmonds (1957) 49 Cal.2d 84, 90 [new trial motion proper after various proceedings without trial, "except possibly in the case of default judgments ... where there may be the question of the right of the moving party to make any objection to the judgment"].) Even under the cases permitting a new trial motion to challenge a default judgment, review by the trial court is rather limited. Thus, such a motion may be granted only where the award of damages is excessive or inadequate, or where the decision is against law. (Don v. Cruz (1982) 131 Cal.App.3d 695, 703.) As to the measure of damages, the court must determine whether the damages are so disproportionate to the injury as to raise a presumption that the award is the result of passion, prejudice, or other improper considerations. (Id. at p. 707.) A decision is against law, in essence, where the sum of the evidence submitted by the plaintiff would justify a directed verdict against him, which is "'"analogous to and practically the same [standard] as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict."'" (Fergus v. Songer (2007) 150 Cal.App.4th 552, 567.)
The requirements for an appellate attack on the sufficiency of the evidence are well established: Defendants challenging the sufficiency of the evidence are required to set forth in their brief all the material evidence on point and not merely their own evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "'Unless this is done the error is deemed to be waived.'" (Ibid.) Here, appellants not only fail to provide a full summary of the evidence, they provide no summary whatsoever; instead, they merely summarize the allegations of the complaint.
Further, even if the issue was not forfeited by appellants' failure to comply with the required briefing standards, they fail to make any reasoned argument in support of their contention. At page 15 of their opening brief, appellants sketch out what are arguably affirmative defenses to the first two causes of action under 42 United States Code section 1983 for denial of civil rights. Affirmative defenses, however, do not undermine the prima facie showing in a plaintiff's case-in-chief, and would not permit entry of nonsuit at the close of a plaintiff's case-in-chief. (See Inderbitzen v. Lane Hospital (1932) 124 Cal.App. 462, 465-466.) Further, appellants do not attempt to demonstrate that the remaining causes of action, for negligence per se and intentional infliction of emotional distress, were not supported by the evidence; in fact, appellants do not mention those causes of action in the relevant section of their brief. In the absence of any presentation of authorities or reasoned argument in support of their claim, appellants have forfeited the contention that the complaint fails to state a cause of action. (See Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
Finally, for the first time in this appeal, appellants contended at oral argument that the evidence was insufficient to support the trial court's award of $190,000 in damages. Even in this untimely presentation of the argument, however, appellants did not address the proof presented at the hearing on damages, instead making reference only to the allegations of the complaint. We have, nevertheless, reviewed the relevant declarations, which adequately establish appellants' role in delaying necessary medical care. The trial court's award of $190,000 in damages for 18 months of serious ear pain that ultimately resulted in permanent loss of hearing in one ear was neither excessive nor "against law."
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
DETJEN, J. WE CONCUR:
DAWSON, Acting P.J.
KANE, J.