Bautista v. City of Los Angeles

APOLONIA BAUTISTA, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

B297556

California Court of Appeals, Second District, Eighth Division

July 26, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC625956, Craig D. Karlan, Judge. Affirmed.

Law Office of Julie C. Lim, Julie C. Lim and Travis Poteat for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Senior Assistant City Attorney, Blithe S. Bock, Managing Assistant City Attorney and Michael M. Walsh, Deputy City Attorney, for Defendant and Respondent.

WILEY J.

Apolonia Bautista sued the City of Los Angeles after she was hit by a car while jaywalking. Bautista claimed the street was unreasonably dangerous for several reasons. Her main complaint is heavy tree cover shaded the street.

The City sought summary judgment. Bautista failed to oppose on a timely basis. The trial court denied relief and then granted the City's motion.

We affirm. Bautista failed to establish good cause for relief. Summary judgment was proper. Undesignated statutory references are to the Code of Civil Procedure.

I

In December 2015, a car struck Bautista while she was crossing the street near her home. The street is Vinton Avenue in Los Angeles. The accident occurred between Regent Street and Tabor Street. Bautista claims she suffered severe and life-changing injuries from the accident.

Much of Bautista's appeal concerns procedural matters. We detail the procedural timeline leading up to the summary judgment ruling.

Bautista sued the driver, Grayline Rogers, some owners and managers of properties near the accident, and the City on July 1, 2016. The court set trial for March 5, 2018.

On February 16, 2018, less than three weeks before trial Bautista filed an ex parte application to continue the trial date. She represented all parties had stipulated to the continuance, both her counsel and counsel for a defendant had upcoming trials, and the continuance would enable greater opportunity for settlement. The court set a new trial date of July 16, 2018.

Bautista served her first set of discovery on the City the day she moved for a continuance. This was 19 months after she filed the lawsuit.

Bautista sought court assistance in April 2018 after the City failed to serve discovery responses. The City answered the discovery shortly after Bautista filed her discovery motions and then supplemented a month later. The trial court denied the motions as moot and ordered sanctions of $810.

On June 28, 2018, Bautista filed another ex parte application to continue the trial date. Bautista accused defendant Rogers of gamesmanship for withdrawing his consent to a continuance complained of discovery conflicts with him, and reported “discovery issues” with the City were pending. The court set a new trial date of February 25, 2019, but it did not reopen discovery.

In November 2018, the City sought to have its summary judgment motion heard within 30 days of trial due to a calendaring error by its counsel.

Bautista then moved to reopen discovery. She claimed attorney error for failing to request this relief earlier, discovery abuse by her opponents, and the need for additional discovery to prepare for trial. Bautista's application highlighted subpoenas she issued to various City departments months earlier in June 2018. The City said Bautista never served it and its counsel with the subpoenas, and they were not aware of them. The parties agreed to a continuance in exchange for reopening discovery. The court set a new trial date of June 3, 2019, and warned it would not continue the matter again for any reason.

In December 2018, the City served responses to the subpoenas. Apparently not content with the responses and believing the verifications should have come from department custodians of records instead of City counsel, Bautista re-issued subpoenas in January and February 2019, including a subpoena to the police department dated February 4th. In the words of Bautista's counsel: “For the record, I did not reserve a motion to compel because I did not think it was going to be effective. I thought it was more efficient and more prudent for the plaintiffs to just subpoena the documents directly.”

On January 3, 2019, the City filed and served its motion for summary judgment. The hearing date was March 20, 2019. Bautista's opposition was due March 6th. That day came and went without a filing.

On March 6 and 8, 2019, City counsel emailed Bautista's counsel requesting her separate statement. City counsel also wrote she had not received Bautista's summary judgment opposition.

On March 11th, five days after the opposition deadline, Bautista moved to continue the hearing under section 437c, subdivision (h). She claimed the City's discovery abuses provided good cause for relief. Specifically, Bautista complained of the police department's refusal to comply with the February 2019 subpoena. Two days after receiving the subpoena, the department wrote Bautista's attorney a letter saying it was returning Bautista's check because the City was a party to the case. A day later, on February 7th, the City asserted objections to the subpoena. Bautista claimed this discovery would show the City's notice of a dangerous condition on Vinton Avenue and maintenance failures.

Bautista's motion included a declaration from her attorney, Julie C Lim. The declaration says nothing about attorney fault. Lim points to the City's discovery abuses and the need for discovery as the sole basis for the motion.

On March 14, 2019, eight days after the opposition deadline, Bautista filed three ex parte applications. The first sought a continuance. This application and the supporting declaration largely mirror the papers Bautista filed on March 11th. Bautista added that the City refused to respond fully to requests for admission. She sought relief under section 437c, subdivision (h), and section 128, subdivision (a)(8), which empowers courts to amend their orders. Lim's declaration again said nothing about attorney error or fault.

The other two ex parte applications concerned discovery. One was to deem admitted certain requests for admission Bautista served on February 7, 2019. The other was to compel the City to comply with the February 2019 subpoena issued to the police department. The ex parte applications were to be heard on March 18, 2019. This turned out to be a busy day in the case.

The City filed two oppositions that day. Regarding the subpoena, the City noted Bautista should not have used a nonparty deposition subpoena for discovery sought from a City department. Rather, she was required to serve a traditional request for production of documents on the City, as it was a party to the case.

Regarding the continuance, the City claimed Bautista's ex parte applications and her discovery were untimely, failed to establish good cause, and underscored her lack of diligence in the case. Bautista's February 2019 subpoena to the police department covered largely the same ground as earlier subpoenas, which the City properly answered in December 2018. Bautista asked for irrelevant documents and documents the police did not maintain, and the requests should have been made to the City through counsel. Bautista served her requests for admission so late they were inconsequential-the responses were due after Bautista's summary judgment opposition. Bautista also had noticed several depositions in February and March only to take them off calendar. Her claims that she needed discovery to oppose summary judgment thus were hollow, according to the City.

Also on March 18th, Bautista's counsel Lim filed a supplemental declaration. For the first time, Lim declared she was seeking relief under section 473, subdivision (b), “due to a calendar error” and “attorney fault”: she failed to calendar the deadline for moving to continue the summary judgment hearing. Lim says she is a solo practitioner and she had been busy preparing for another trial. The declaration then discusses the City's “continuing discovery abuse” and Bautista's need for documents from the police department.

The trial court heard Bautista's ex parte applications the same day as this flurry of filings-March 18, 2019. The court denied Bautista's two discovery applications. After argument, the court asked Lim to “cut to the chase” and say what she needed from the police department. Lim said traffic engineering reports, and if the department did not have them, a verified declaration saying so. The trial court continued the hearing to March 20, 2019, so the City could get a supplemental response from the police department. The court said it was inclined to deny the continuance, as it could not find good cause.

On March 19th, the day before the scheduled summary judgment hearing, Bautista filed opposition papers without obtaining leave. Lim admitted these papers were “limited”, “not thorough”, and “not complete.”

Also on March 19th, Bautista filed another ex parte application, apparently under the misimpression the court denied her first application seeking a continuance. This time, Bautista also asked the court to accept her late opposition. The notice states relief is warranted due to the City's “ongoing campaign of discovery abuse, ” which impeded Bautista's ability to prepare the opposition. The brief again cited section 437c, subdivision (h), and section 128, subdivision (a)(8), as the bases for relief. It mentioned “attorney error” only in passing.

Lim briefly explained the error and cited section 473 subdivision (b), in a new declaration. She said she had been busy on another case and the late opposition resulted from her ...