Pineda v. Nugent

Filed 10/12/06 Pineda v. Nugent CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Charles D. Pineda, Jr., in pro. per., for Plaintiff and Appellant.

David J. Wells & Associates and David J. Wells, for Defendant and Respondent.

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Charles D. Pineda, Jr., sued a number of defendants after he slipped and fell in the parking lot of a Bakersfield Jack in the Box restaurant. He appeals from trial court orders granting summary judgment for the chief executive officer of Jack in The Box, Inc., and denying his request for a protective order. We will affirm.

FACTS AND PROCEDURAL HISTORY

According to the allegations of the first amended complaint, Pineda slipped and fell in the parking lot of a Jack in the Box restaurant in Bakersfield in March 2002. He alleged that a number of defendants were negligent in that they permitted car oil and other debris to accumulate causing a sludge stream in the parking lot. He asserted causes of action for motor vehicle, general negligence, intentional tort, products liability and premises liability, and sought punitive damages. Robert Nugent, the chief executive officer of Jack in the Box, Inc., was served as Doe No. 1 in December 2004.

Nugent moved for summary judgment on the ground that, as chief executive officer of the Jack in the Box corporation, he was not liable for Pineda’s injuries. He submitted a declaration stating that he did not authorize, direct or participate in any tortious conduct toward Pineda. Further, he was unaware of the alleged dangerous condition created by the sludge stream in the parking lot of the Bakersfield Jack in the Box, which was one of 1,500 restaurants that the corporation owned.

Pineda’s opposition to the summary judgment motion did not comply with Code of Civil Procedure section 437c and California Rules of Court, rule 342(e) and (f); nor did it include any evidence to counter Nugent’s declaration. Pineda asserted that Nugent was aware of the hazardous condition in the parking lot before he fell or, if Nugent was unaware as he stated in his declaration, that amounted to a confession of incompetence and neglect.

While the summary judgment motion was pending, Pineda filed a petition for a protective order against Nugent’s counsel, David Wells, barring him from communicating with Pineda and requiring him to settle the action and pay Pineda for the injuries alleged in the complaint. The petition also requested orders limiting discovery. No opposition was filed.

After a hearing to address both the motion and the petition, the court granted summary judgment for Nugent on the ground there was no triable issue as to his individual liability as chief executive officer of the corporation for Pineda’s injuries. The court denied the petition for a protective order as unsupported. This appeal followed.

DISCUSSION

Summary Judgment

Pineda’s three-page opening brief includes a table of authorities and cites to the record but there is no reasoned argument that the trial court erred in granting summary judgment for Nugent.

Nugent’s brief points out the procedural flaws in Pineda’s opposition to the motion for summary judgment in the trial court and in his brief on appeal. It cites no law but asserts that the granting of summary judgment was correct as a matter of law.

Pineda filed two reply briefs. The first recites discovery grievances and asserts that his disabilities were not properly accommodated because he was not allowed to proceed in “written format,” but was made to appear by telephone at the hearing. Attached to the brief are a form complaint reporting Mr. Wells to the State Bar of California supported by seven pages of electronic mail between himself and Mr. Wells, a form complaint reporting Dr. Acala to the Medical Board of California, and a form complaint reporting Judge Chapin, who granted summary judgment for Nugent, to the State Commission on Judicial Performance. The “Revised & amended” reply brief restated the claims asserted in the opening brief, a number of which are irrelevant to the orders at issue.

(a) Officer Liability for Acts of the Corporation

Corporate officers do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done. They may be liable, under the rules of tort and agency, for tortious acts committed on behalf of the corporation. But, they are not responsible to third persons for negligence amounting merely to nonfeasance. (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 684-685; 9 Witkin, Summary of Cal. Law (9th ed. 1989) Corporations, § 107, p. 884.)

In support of his motion for summary judgment, Nugent presented evidence that he was the chief executive officer of Jack in the Box, Inc. The corporation owned the restaurant in Bakersfield where Pineda’s accident occurred. Prior to Pineda’s accident, Nugent had no knowledge of any unsafe condition or sludge stream with respect to the parking lot at the Jack in the Box in Bakersfield. Further, he did not control the cars in the drive-through at that Jack in the Box nor was he in Bakersfield on the day Pineda was injured. Nugent’s declaration thus established that he did not participate in any wrongdoing that caused injury to Pineda or authorize or direct any activity that had done so.

In opposition, Pineda offered no evidence to raise a triable issue as to whether Nugent had any personal connection to the Bakersfield restaurant or to his slip and fall incident. Pineda presented no evidence that Nugent personally authorized, directed or participated in any wrongdoing that resulted in Pineda’s accident and injuries. Pineda also failed to provide any legal support for his assertion that Nugent’s lack of awareness constituted negligence; and, Michaelis v. Benavides, supra, holds to the contrary. Accordingly, the court properly granted summary judgment for Nugent.

Protective Order

Pineda challenges the denial of his petition for a protective order. Respondent contends this order is not appealable because it was not listed in the notice of appeal. We disagree. Pineda used the Judicial Council Notice of Appeal form and wrote that he was appealing the judgment or order entered on September 16, 2005. On that date, the court granted summary judgment for Nugent and denied the petition for a protective order. Construing the notice of appeal liberally in favor of its sufficiency as we must (Cal. Rules of Court, rule 1(a)(2)), we deem it sufficient to preserve this ruling for review.

In his petition for protective orders for “Elder or Dependent Adult Abuse,” Pineda alleged that Nugent’s counsel, David J. Wells, had caused him physical harm and mental suffering by: perjuring himself regarding Pineda’s cooperation with discovery, refusing to accommodate Pineda and take his deposition in Shasta County where he now resided, and filing an untimely demurrer.

The court denied the petition finding that it had not been served and was unsupported. Pineda correctly notes that the petition had been served so should not have been denied on that ground. Nevertheless, the court properly denied the petition because it contained insufficient factual allegations to warrant the relief requested.

Pineda requested a personal conduct order against Wells directing Wells not to abuse, intimidate, molest, attack, strike, stalk, threaten, sexually assault, batter, harass, telephone, or contact directly or indirectly, by mail or otherwise. However, the only allegation of relevant wrongdoing by Wells was boilerplate allegations on the Judicial Council form that “the person to be restrained caused the person to be protected to suffer physical harm or pain or mental suffering through physical abuse, financial abuse, abandonment, isolation, abduction, or other treatment.” And, the only specific allegations of abuse--item 13 on the form--describe discovery disputes and the filing of an “untimely demurrer.” Thus, the court properly denied as unsupported the request for a personal conduct order. Pineda also requested by way of relief that the court order settlement of the complaint, place a firearm prohibition on Wells, “restrict motions to compel discovery as to redundancy,” and to schedule depositions and the trial in December 2005 or January 2006 when he was available.

The court properly denied these requests as well. First, the court is not authorized to order a case to settle. Second, the petition was devoid of any specific allegation supporting the firearm prohibition. Third, while the court is authorized to limit discovery through protective orders (Code Civ. Proc., § 2019.030, subd. (a)), the allegations in the petition were insufficient to warrant relief.

The court will limit the scope of discovery if it determines that the burden, expense or intrusiveness clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2019.030, subd. (a)(1) and (2).) In addition, the court may grant a protective order to restrict the frequency or extent of use of any discovery method, when the discovery sought is unreasonably cumulative or duplicative or it can be obtained from another source that is more convenient, less burdensome or less expensive. (Ibid.)

A motion for a protective order must be accompanied by a meet and confer declaration showing the moving party made a reasonable and good faith attempt to resolve the issue outside of court. (Code of Civ. Proc., §§ 2016.040 & 2019.030, subd. (b).) The burden is on the party seeking the order to show good cause for the relief requested. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) The concept of “good cause” requires a showing of specific facts demonstrating the alleged undue burden and justifying the relief sought. (Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

Pineda’s petition for a protective order did not have the required meet and confer declaration and the alleged facts supporting the petition lacked the specificity necessary to warrant relief. Thus, the trial court properly denied the petition as unsupported.

To the extent Pineda intended to raise other issues in his appeal or by motion, his arguments were not developed. When issues are not clearly set forth and supported by legal authority they are deemed to be abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.) Consequently, we deem any contentions in addition to those discussed above to be abandoned.

DISPOSITION

The orders of the trial court are affirmed. Respondent is awarded his costs on appeal.

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^* Before Harris, Acting P.J., Dawson, J., and Kane, J.