Holly B. v. Glitch

Filed 10/27/06 Holly B. v. Glitch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Affirmed.

In this case for intentional torts and negligence, plaintiff Holly B. contends the trial court abused its discretion by denying her attorney fees incurred in proving at trial that defendant Allen Glitch slapped her face, after he denied a request for admission that he had done so. (Code Civ. Proc.,^[1] § 2033.420.) Holly challenges the court's ruling that cost-of-proof sanctions are unwarranted because it is unclear whether the jury found Glitch slapped her, and he had a reasonable ground to believe he would prevail on the matter at trial. We find no abuse of discretion and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 8, 2003, Holly was a 12-year-old sixth grader at Boone Elementary School, a school in the San Diego Unified School District. She was in Glitch's special education class. July 8 was a minimum day, and music class with another instructor was the last period, to be followed by lunch and release of the students. After music class the music teacher telephoned Glitch and asked him to pick up his students. As Glitch and his aides approached the music room, however, the students "came running around the corner in total chaos." Glitch had the students line up against a wall. Holly either did not line up, or she stepped out of line to leave school. She was worried about her father's admonition not to miss her bus home, even though it was not scheduled to leave for approximately 30 minutes. An incident then ensued between Glitch and Holly during which Glitch touched Holly.

Holly sued Glitch for personal injuries, alleging causes of action for assault, battery and negligence.^[2] During discovery, Holly sent Glitch requests for admissions, one of which asked him to admit, "On July 8, 2003, you slapped the face of Plaintiff, Holly B., on the premises of Boone Elementary School." Glitch responded, "Objection: vague and ambiguous in the use of the word 'slapped,' which reasonable people may define differently as to the nature of the act or the force involved. Subject to this objection, defendant denies that he 'slapped' Plaintiff's face."

A six-day jury trial was held in June and July 2005. Holly testified that before July 8, 2003, Glitch "was a good person to me" and they "always got along." She said that on July 8 Glitch pushed her shoulders with his palms and then slapped her face more than once. Her face was "burning," but it did not bruise.

Glitch testified that Holly was generally a good student and not a behavior problem, and they "got along famously." He said that on July 8 Holly began walking toward him instead of lining up, and "I put my hand against the wall" to retain control over her for safety reasons. Holly stopped but then swore at him and said she did not have to listen to him. Glitch told her, "Holly, nobody is going anywhere," after which she punched him on the top of his right eyebrow. When asked whether he then hit Holly, Glitch responded: "My hand brushed her cheek. When she hit me, I reacted. My hands went up and down. I wouldn't call it a hit. I would call it a brush or contact. I contacted her cheek, yes." Glitch added, "I wouldn't call it a slap," but rather "flailing," or a "reflex reaction to being punched."

Joseph Mulligan was installing windows at Boone Elementary School on July 8. He testified he noticed a teacher and a female student outside having an argument, with the teacher reprimanding the student. He walked by the two persons, but when the argument escalated he turned from about five to 10 yards away to look at them. Mulligan saw the teacher strike the student's face "with his right hand, an open hand. He had his arm fully extended, and he reached back beyond his shoulder and came down on her face." Mulligan testified, "It was . . . two repeated strikes to the student's face, at which point the student quickly began to defend herself, striking the teacher in the chest, punching him in the chest, and I believe she tried to kick him in the leg." Mulligan reported the incident to the principal of Boone Elementary School and he gave a written statement.

Joseph Almazan, a construction superintendent, was also at Boone Elementary School on July 8. He testified, "I saw the teacher trying to grab the little girl, and then I [saw] the accident with the little girl slapped the teacher and the teacher slapped her back." He also said Glitch "was yelling at her, telling . . . the girl, 'Get back in the line, get back in the line.' " Almazan was approximately 30 to 40 yards from the incident. He described Glitch's hit as, "Open hand, slap on the face." Almazan saw only one slap from Glitch, which occurred after Holly slapped his face. Almazan referred to Glitch's conduct as a "reflex." Almazan gave a written statement to the school's vice-principal.

Susan Balentine, a truck driver, was also at Boone Elementary School on July 8. She saw a group of students about 50 feet away from her truck. She testified, "It looked like one of the students had stepped out of line, and the teacher was instructing the student to get back into line, and the student was not getting back into line, and . . . it looked like the teacher was yelling. I couldn't hear anything. I had my windows up, radio was on, . . . my AC was on." Balentine further testified: "The teacher lunged towards the student with his chest sticking out. . . . She didn't move. He pushed her. . . . She went back to where she was standing, and he slapped her across the face twice. She kicked him. She took a swing at him, did not contact with her hands." When asked how the teacher hit the student, Balentine said, "Open hand, slapped her across the face," and, "He extended his arm back and hit her hard across the face, twice." Balentine also reported the incident to the school's principal and gave a written statement.

Diana Kosar's backyard abuts Boone Elementary School's playground. She testified that on July 8 she heard a "very loud, aggravated, agitated [male] voice; someone screaming at the top of their lungs." From her kitchen window, Kosar "saw a teacher or what I thought was a teacher yelling and screaming at a young child at the top of his lungs to, 'get back in line, get back in line.' " Kosar then went to her backyard, and "the guy just continued yelling and screaming. Then . . . the girl was kind of backing up. . . . She, the girl, ended up behind this trailer, storage bin thing, and the teacher's hand went up, and went down, as into a hitting motion." Kosar did not see any contact because Holly was hidden by the storage bin. Kosar also reported the incident to the school and gave a written report.

David Terrell was Glitch's special education assistant on July 8. Terrell testified he was about 30 feet away from Glitch and Holly during the incident. Glitch yelled at his students to line up against a wall, and everyone complied but Holly. Terrell said Glitch told Holly several times to line up, and "then he tried to get her in line by . . . nudging her with his hands like this." Terrell indicated that Glitch put his hands on Holly's shoulders. Terrell did not recall hearing Holly say anything, and Glitch's tone of voice was "loud." Holly walked away, and Glitch "tried to stop her from leaving by putting his arm against the bungalow." As Glitch was urging Holly to get in line, she "slugged" him below the right eye. Glitch had not hit Holly prior to that. After she hit him, "he had kind of a reflex reaction. He slapped her a couple times [on the face], with his hands, side to side." Terrell indicated that Glitch had his "elbows into the side, with the forearms, hands open going back and forth." Terrell denied that Glitch tried to influence his recollection of the incident.

In a special verdict form, the jury was asked to decide whether Glitch committed an assault or a battery or was negligent. The jury answered the questions affirmatively, and it also found the assault, battery or negligence was a substantial factor in causing injury to her. The jury found Glitch did not act with malice or oppression. The jury awarded Holly $5,120 in economic damages and $10,000 in noneconomic damages. Judgment was entered on July 19, 2005.

Holly then moved under section 2033.420 for $111,080 in attorney fees as sanctions against Glitch for denying her request for an admission that he slapped her. The court denied the motion on the grounds Holly did not seek to compel a further response clarifying how Glitch defined the word "slapped" in his response to the request for admission, it was unclear whether Holly proved that Glitch slapped her, and he had a reasonable basis to believe he would prevail on the matter at trial. The court did award Holly $13,354 in costs against Glitch and the San Diego Unified School District.

DISCUSSION

I

" 'It is well established that although the principal aim of discovery procedures in general is to assist counsel to prepare for trial, requests for admissions are conceived for the purpose of setting to rest triable issues in the interest of expediting trial.' " (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634 (Wimberly).) Further, the "cost-of-proof sanction is designed to compensate for unnecessary expenses resulting from proving matters unreasonably denied." (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2005) 8:1405, p. 8G-36.) " 'Where certain facts exist which the responding party does not intend to contest at trial, the proper time to admit and permit those facts to be established is during pretrial discovery.' " (Wimberly, supra, at p. 634.)

Accordingly, section 2033.420, subdivision (a), provides: "If a party fails to admit . . . the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." Under subdivision (b) of section 2033.420, the "court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no substantial importance. (3) The party failing to make the admission had reasonable ground to believe that the party would prevail on the matter. (4) There was other good reason for the failure to admit."

The determination of whether a party is entitled to expenses under section 2033.420 is within the sound discretion of the trial court. " 'On appeal, the trial court's decision will not be reversed unless the appellant demonstrates that the lower court abused its discretion.' [Citation.] '[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. . . .' " (Wimberly, supra, 56 Cal.App.4th at p. 637, fn. 10.) "Under the deferential abuse-of-discretion review, we have no authority to substitute our own decision for that of the trial court. [Citation.] Our inquiry is limited to determining whether the trial court's decision exceeds the bounds of reason." (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 269.)

II

Holly contends the trial court abused its discretion by finding cost-of-proof sanctions are unwarranted because Glitch had a reasonable belief he would prevail at trial on the slapping issue. (§ 2033.420, subd. (b)(3).) Holly's request for admission did not define the term "slap," and Glitch offered no definition in his response. The common meaning of "slap" is "to strike sharply with . . . the open hand." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1170.)

We cannot say the court exceeded the bounds of reason. Glitch denied slapping Holly, and testified his hand "brushed" Holly's face in a reflexive action after she struck him near his eye. Although several witnesses characterized Glitch's contact with Holly as one or two "slaps," the court presumably found the jury could have believed Glitch's version, and it was in a better position than we are to assess his sincerity and credibility. Both Almazan and Terrell confirmed Glitch's testimony that Holly struck him first, and they described Glitch's response as a "reflex." Glitch did not deny physical contact with Holly in some manner. Rather, his defense was that he did not intentionally strike her or strike her with an open hand.

This is not a case such as Wimberly, supra, 56 Cal.App.4th at page 637, in which we held the plaintiff was entitled to cost-of-proof sanctions after the defendant denied there was a manufacturing defect in a bicycle component and causation, and then produced no evidence at trial on those issues. (See also Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 512 [defendant entitled to cost-of-proof sanctions when plaintiff denied his truck was over the centerline of the road but did not contest the matter at trial].)^[3] We are not prepared to overturn the court's determination that at the time Glitch made the denial he "held a reasonably entertained good faith belief that [he] would prevail on the issue at trial." (Brooks v. American Broadcasting Co., at p. 511.)

Moreover, the court's ruling was proper on the ground Holly did not show she proved to the jury that Glitch slapped her. The special verdict form did not ask the jury to determine that issue, but only to determine whether he committed an assault or a battery. "A battery is any intentional, unlawful and harmful contact by one person with the person of another. . . . A harmful contact, intentionally done is the essence of a battery. . . . A contact is 'unlawful' if it is unconsented to." (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611.) " 'Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.' [Citation.] A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm." (Lowry v. Standard Oil Co. of California (1944) 63 Cal.App.2d 1, 6-7.) "The tort of assault is complete when the anticipation of harm occurs." (Kiseskey v. Carpenters' Trust for Southern California (1983) 144 Cal.App.3d 222, 232.)

The jury could find the elements of these causes of action without deciding Glitch's physical contact with Holly was a slap. The court heard all of the testimony first hand, and we are not inclined to tamper with its decision that "[i]t is not clear that [Holly] proved the truth of the matter in the requested admission." Holly could have requested that the jury determine in the special verdict form whether Glitch slapped her, but she did not do so. We conclude the court did not abuse its discretion by denying cost-of-proof sanctions under section 2033.420, subdivision (b)(2), (3).^[4]

DISPOSITION

The judgment is affirmed. Glitch is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] Statutory references are to the Code of Civil Procedure unless otherwise specified.

^[2] Holly also sued the San Diego Unified School District and another of its employees, but they are not involved in this appeal.

^[3] We note, however, that section 2033.420 does not limit cost-of-proof sanctions to situations in which the party denying a request for admission concedes the issue at trial or adduces no evidence on it.

^[4] Given our holding, we are not required to address Holly's contention the court abused its discretion by basing its ruling, in part, on the lack of a motion to compel a further response to her request for admission on the slapping issue. We are also not required to reach Glitch's assertion that the request for admission was not a matter of "substantial importance" within the meaning of section 2033.420, subdivision (b)(3), since the touching was not required to be a slap to impose liability for assault and battery.