Bank of America v. Simpson

Filed 6/13/06 Bank of America v. Simpson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Richard A. Adler, Judge. Affirmed.

Robert H. Simpson, in propria persona, for Defendant and Appellant.

Law Offices of Hemar Rousso & Heald, LLP, and Mary A. Lazaran for Plaintiff and Respondent.

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In August 2004, respondent Bank of America sued appellant Robert H. Simpson for breach of contract, claim and delivery, conversion, and goods sold and delivered, alleging that Simpson had bought a Toyota Sienna from Keyes Toyota under an installment sale contract, that Keyes Toyota was the Bank's assignor, and that Simpson had failed to make the agreed-on payments.

On February 7, 2005, the Bank moved for summary judgment. In its separate statement of undisputed facts, the Bank proffered as undisputed that Simpson had entered into the contract and agreed to make 58 monthly payments of $650.38, that the Bank had perfected its ownership interest in the car by obtaining a Certificate of Title, and that Simpson had made four monthly payments, then bounced a check for the balance due, $31,284. In support of these proposed undisputed facts, the Bank relied on declarations from its lawyer and from an employee whose title was Legal Coordinator, on the relevant documents, and on Simpson's admissions, in response to Requests for Admissions, that he had signed the sales contract with the Bank's assignor and had not paid any amount due after January 1, 2004.

Hearing on the summary judgment motion was set for May 2. On February 22, after the summary judgment motion was made, but before it was heard, Simpson propounded discovery, 63 requests for admission and 38 special interrogatories. He sought information on "what [the Bank] tendered to acquire the subject Retail Installment Contract . . . and how any such consideration was transmitted; exactly what [the Bank] loaned [Simpson], if anything; the banking regulations relied on by [the Bank] to conduct business with [Simpson]; evidence of loss, injury, harm, or damage or exposure to risk sustained by [the Bank] at the hands of [Simpson]," and "identification of each step in the loan process via which [the Bank] now claims a right of action against [Simpson]."

The Bank filed objections and responses, and on April 5, Simpson moved to compel further responses. The motion to compel was set for hearing on April 27. In the meantime, on April 9, Simpson propounded a second set of interrogatories and requests for admission, with responses due on May 6.

Simpson filed his opposition to the summary judgment motion on April 18. He did not submit a response to the Bank's separate statement of facts, but argued that the Bank had not proffered any evidence that it had tendered consideration, or any evidence that it had sustained loss due to any breach of the contract. He also asked for a continuance to complete discovery, citing the motion to compel.

On April 27, the court heard Simpson's motion to compel answers to his first set of interrogatories. In a 26 page minute order, the court overruled the Bank's objections to many of the requests for admission and ordered the Bank to respond to those requests, ordered the Bank to provide further answers to many of the special interrogatories, and imposed a $100 sanction on each party for failure to meet and confer. The court also ruled on Simpson's motion for a continuance of the summary judgment, and denied the request. The court found that he had not acted diligently and that the motion was procedurally improper, in that it failed to present facts showing a likelihood that controverted evidence might exist, the reason why the evidence could not timely be obtained, and an estimate of the time necessary to obtain that evidence.

The further discovery responses were ordered to be provided by May 11. The Bank complied with that order.

On May 2, the court granted the Bank's motion for summary judgment, based on the facts in the Bank's separate statement. Judgment was entered on May 20. On May 5, in response to Simpson's inquiry about discovery responses, the Bank informed Simpson that it would respond to his first set of requests for admission and interrogatories by May 11, pursuant to court order, but that, given the summary judgment ruling, it would not be responding to his second set.

On June 6, Simpson moved for reconsideration of the order granting summary judgment. Although he had by then received the Bank's further answers to his first set of interrogatories and requests for admission, he did not cite any specific evidence in support of his request, but argued that, due to the summary judgment ruling, the Bank had refused to respond to his second set of requests for admission and interrogatories and that he wished to make a summary judgment motion of his own. The court denied the motion, finding that it had no jurisdiction to rule on the motion, since the judgment was final, and also finding that even if it had had jurisdiction, it would not grant the motion because it did not comply with Code of Civil Procedure section 1008: it was untimely, was not based on new or different facts, and did not include a declaration.

Simpson represented himself in the trial court.

On this appeal, Simpson contends that the trial court was obliged to hold him to less stringent standards than those to which represented parties are held, and erred when it failed to do so. He notes in particular the $100 sanction, and, from the fact that the court found many of the Bank's objections to discovery meritless, concludes that the Bank's lawyers were accomplished, where he was not. In legal support, he cites Haines v. Kerner (1972) 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652, 654.

We see no error. Haines held only that "Where a section 1983 [42 U.S.C. § 1983] complaint is drafted by a pro per litigant, it is held 'to less stringent standards than formal pleadings drafted by lawyers . . . .'"

(Bach v. County of Butte (1983) 147 Cal.App.3d 554, 564.) Unlike Haines, this is not a section 1983 case. Further, nothing in Haines changes the well-established California rule that a party appearing in propria persona is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)

Nor do we see any abuse of discretion in the ruling denying a continuance. Simpson contends that he was denied his continuance, and thus the meaningful use of the answers to his interrogatories, because he failed to tab his exhibits. While the minute order notes this procedural violation, it further explains the basis for the ruling, Simpson's failure to comply with Code of Civil Procedure section 473b, subdivision (h). Simpson did not make the showing which would have entitled him to a continuance. (Code Civ. Proc., § 473, subd. (h); Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765.)

As to the summary judgment, "'Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court.' [Citation.] We must identify the issues framed by the pleadings, determine whether the moving party has negated the opponent's claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue. [Citation.] On appeal our review is limited to the facts shown in the documents presented to the trial judge in making our independent determination of their construction and effect as a matter of law.' [Citation.]" (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 978-979.)

Here, because the Bank proffered undisputed facts establishing each element of its causes of action, and Simpson did not dispute those facts, we find that the motion was properly granted. We note that this was a simple case, in which summary judgment was obviously proper, and in which there was no need for protracted and elaborate discovery. Indeed, appellant had admitted the elements of respondent's case: he bought the car and did not pay for it.

Simpson now speculates on the defenses he might have mounted, had he had the Bank's discovery responses in time. It is true that complete responses were not provided until after the summary judgment motion was heard, but that is the result of the timing of Simpson's discovery and his motion to compel.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J. MOSK, J.

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