Kimble v. WDW Joint Venture CA2/7 ( 2021 )

Filed 1/19/21 Kimble v. WDW Joint Venture CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HELENA KIMBLE, B296965
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. VC066607)
v.
WDW JOINT VENTURE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lori Ann Fournier, Judge. Reversed and
remanded.
A.O.E. Law & Associates, Anthony O. Egbase, Adam Apollo
and Sedoo A. Manu for Plaintiff and Appellant.
Pleiss Sitar McGrath Hunter & Hallack, Mark G. McGrath
for Defendant and Respondent.
__________________
Helena Kimble appeals the judgment entered after the trial
court granted the motion for summary judgment filed by WDW
Joint Venture, doing business as Downey Community Health
1
Center, in Helena’s action for wrongful death. Because WDW’s
motion was directed to the other named plaintiffs, not to her,
Helena contends the court erred in including her in its ruling and
entering judgment against her. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2017 Ira Lee Kimble, by and through his
widow and successor in interest Loretta G. Kimble, sued WDW
for negligence and elder abuse in connection with its treatment of
Ira while he was a patient at WDW’s skilled nursing facility. The
same day she filed the negligence and elder abuse action, Loretta
joined her children Ira Kimble II and Latricia Kimble in filing a
wrongful death action against WDW, alleging the actions and
omissions of WDW and its employees had caused Ira’s death.
The wrongful death complaint identified Loretta, Ira II and
Latricia (collectively the Loretta Kimble plaintiffs) as Ira’s
surviving heirs. Helena and two other individuals, Sabrina
Gibson and Montoria Gibson, were described as indispensible
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parties and named as nominal defendants.
In January 2018 the court ordered the two lawsuits
consolidated.
1
Because Helena Kimble and the other plaintiffs in this
action share the same surname, for clarity we sometimes refer to
them by their first names.
2
Helena is Ira’s daughter and Loretta’s stepdaughter.
Sabrina Gibson and Montoria Gibson have not appeared in the
action and have not been otherwise identified.
2
After filing an answer to the wrongful death complaint,
Helena moved to join the wrongful death action as a plaintiff
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pursuant to Code of Civil Procedure section 378, alleging that, as
Ira’s daughter, she was an indispensible party.
On September 19, 2018, before the court had ruled on
Helena’s motion to join the wrongful death action as a plaintiff,
WDW moved for summary judgment or, in the alternative,
summary adjudication in the consolidated action for elder abuse,
negligence and wrongful death. The notice of motion and motion
were specifically directed to “Plaintiffs, Ira Lee Kimble, by and
through his successor in interest, Loretta Kimble . . . ; and
Loretta G. Kimble, Ira Kimble II; and Latricia R. Kimble.”
4
Helena was not identified in the notice of motion or motion.
On November 21, 2018 the trial court granted Helena’s
motion to join the wrongful death lawsuit as a named plaintiff. A
3
Statutory references are to this code.
4
The notice of motion stated in part, “To All Parties And
Their Respective Attorneys of Record: [¶] Please Take Notice
that on December 18, 2018 . . . defendant, WDW Joint Venture,
dba Downey Community Health Center . . . will, and hereby does,
move the Court for an order for entry of summary judgment in its
favor and against Plaintiffs, Ira Lee Kimble, by and through his
Successor in Interest, Loretta Kimble (Case No. VC066607); and
Loretta G. Kimble; Ira Kimble II; and Latricia R. Kimble (Case
No. VC066608) [collectively ‘Plaintiffs’].” (Block capitalization
omitted.) The parts of the notice directed to the alternative
motion for summary adjudication similarly stated the motion was
directed against Loretta in the elder abuse/negligence action and
against Loretta, Ira II and Latricia in the wrongful death action.
Helena was not mentioned.
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first amended complaint adding Helena as plaintiff was filed on
November 29, 2018.
In December 2018 the Loretta Kimble plaintiffs opposed
WDW’s motion for summary judgment/summary adjudication.
Helena, who had been served with WDW’s moving papers, did not
file an opposition.
On January 15, 2019 the Loretta Kimble plaintiffs
appeared at the hearing on WDW’s motion and argued the
motion should be denied on its merits. Counsel for Helena made
a formal appearance but did not offer any arguments. After
stating it was inclined to deny the motion, the trial court took the
matter under submission.
On February 1, 2019 the Loretta Kimble plaintiffs
withdrew their opposition to the summary judgment motion after
entering into a settlement with WDW.
On February 11, 2019 the court granted WDW’s motion for
summary judgment. Finding WDW had carried its burden on
summary judgment and observing the motion was unopposed, the
court concluded summary judgment in favor of WDW in the
consolidated action for elder abuse, negligence and wrongful
death was proper. In both its written ruling and minute order,
the court referred to “plaintiffs” collectively without identifying
any of them by name.
Helena filed a motion for clarification or, in the alternative,
reconsideration. Emphasizing she had not been named in
WDW’s notice of motion or motion for summary judgment,
Helena sought clarification that the court’s order would not result
in the dismissal of her wrongful death lawsuit.
WDW opposed Helena’s motion, arguing it was neither
timely nor a proper motion for reconsideration pursuant to
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section 1008, as it was not based on new facts or evidence. It also
argued it was Helena Kimble’s obligation to file an opposition and
seek a continuance of the hearing if necessary in order to
preserve her action and she had done neither. WDW requested
the trial court sanction Helena for filing a frivolous motion.
At the hearing on Helena’s motion the court expressed
frustration at Helena’s counsel for not making clear at the
summary judgment hearing that Helena intended to proceed with
her lawsuit no matter how the court ruled on the summary
judgment motion. “You were here. You knew about [the motion].
You could have asked for a continuance. . . . You never once did
that, and you relied on the other moving parties’ papers or the
response. You didn’t ever say you wanted to file something on
your own, and only because the case played out the way that it
did, you came back here and asked me for reconsideration. You
never until then made it known that you wanted to do something
other than what was already presented, and truthfully, that’s
troubling to me[.]” In response Helena’s counsel informed the
court he had considered filing an opposition to the motion but
elected not to as his client had not been identified in the motion
and he did not want to waive any notice rights.
After taking the matter under submission, the court denied
Helena’s motion. Helena filed a notice of appeal from the order
granting summary judgment. Later, the court entered judgment
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against Helena and the Kimble plaintiffs.
5
We treat Helena Kimble’s premature notice of appeal from
the summary judgment order as timely filed. (Cal. Rules of
Court, rule 8.104(d).)
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DISCUSSION
The question presented in the case at bar is whether a
motion for summary judgment is properly granted against a
party to whom the motion was not directed. The answer, absent
a waiver of rights that did not occur in this case, is no.
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843; see § 437c, subd. (a)(1)
[“[a] party may move for summary judgment in an action or
proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding”].) Although the
moving party must serve the motion and supporting papers “on
all other parties to the action” (§ 437c, subd. (a)(2)), the motion
need not be directed to all other parties. (See § 437c, subd. (a)(1)
[“[t]he motion may be made at any time after 60 days have
elapsed since the general appearance in the action or proceeding
of each party against whom the motion is directed”].)
Accordingly, it is incumbent on the moving party to identify in
the notice of motion and motion the parties “to whom it [the
motion] is addressed.” (Cal. Rules of Court, rule 3.1112(d)(2).)
WDW acknowledges its notice of motion and motion did not
specifically identify Helena Kimble as one of the parties to whom
the motion was directed. However, it argues the general address
at the top of the notice of motion, “To All Parties and Their
Respective Attorneys of Record,” necessarily included Helena,
who was a nominal defendant at the time the motion was filed.
That language, at most, put all parties, including Helena, on
notice the motion had been filed. It did not provide notice
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summary judgment was being sought against her, as
section 437c, subdivision (a)(1), and California Rules of Court,
rule 3.1112(d)(2) require. Indeed, the very next paragraph of the
notice of motion specifically stated the motion was against the
Loretta Kimble plaintiffs only.
WDW alternatively argues that, by not filing an opposition
or moving to continue the summary judgment hearing despite
having notice of the motion and being present at the hearing,
Helena waived any objection to the motion being granted against
her. But Helena had no duty to oppose the motion, let alone
request a continuance to file an opposition, because the motion
was not directed to her. Not surprisingly, WDW cites no
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authority for a finding of waiver under these circumstances.
Although WDW does not cite Carlton v. Quint (2007)
77 Cal.App.4th 690, its waiver argument seems to be based on
dicta from that case. In Carlton the plaintiff asserted on appeal
that the defendant had failed to serve his summary judgment
motion at least 28 days before the hearing, the notice period then
statutorily required. (Id. at p. 696.) After holding the motion
had, in fact, been timely served, our colleagues in Division Three
of this court suggested an approach for counsel to follow when he
or she believes notice is inadequate, including appearing at the
6
WDW’s waiver argument ignores its own crucial omissions.
At the time it was filed, WDW’s motion for summary judgment
was properly directed to a complaint in which Helena was not an
adverse party. After the first amended complaint was filed and
the complaint to which the motion was directed superseded,
WDW did nothing to indicate it intended its motion apply to the
operative first amended complaint naming Helena as a plaintiff.
As a result, Helena had no reason to object on notice grounds or
seek a continuance.
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hearing and requesting a continuance to file a proper opposition
or filing the best possible opposition under the circumstances and
demonstrating at the hearing the prejudice caused by lack of
proper notice. (Id. at pp. 696-697.) The court of appeal observed
the plaintiff had taken none of those steps. To the contrary, the
plaintiff “filed a response to the motion for summary judgment,
never claimed he did not have adequate time to prepare a
response, appeared at the hearing, argued the merits, never
requested a continuance, and never claimed he was prejudiced by
the defective service or inadequate notice of hearing.” (Id. at
p. 698.) Citing well-settled law the Carlton court held the
plaintiff’s active participation in arguing the merits of the motion
at the hearing—not his failure to request a continuance—waived
any defects in notice or service. (Id. at p. 697.)
We need not evaluate the Carlton court’s suggested
strategy to avoid waiver of defective notice or service because,
unlike the situation in Carlton, the motion in this case was not
directed to Helena (or, for that matter, to the first amended
complaint naming her as a plaintiff). For that reason, she did not
file an opposition to the summary judgment motion, a joinder in
the Loretta Kimble plaintiffs’ opposition or argue the merits at
the hearing. Accordingly, there was no waiver. (Cf. Robinson v.
Wood (2008) 168 Cal.App.4th 1258, 1266 [distinguishing Carlton;
plaintiffs who appeared at summary judgment hearing but did
not argue the merits of the motion did not, by their limited
opposition on notice grounds, waive their right to proper
statutory notice].)
Finally, WDW’s emphasis on Helena’s failure to conduct
any discovery of her own is, quite simply, beside the point. While
such failures, if they continue, could very well affect Helena’s
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ability to respond to a summary judgment motion properly
directed to her and to prosecute her case at trial, they are
irrelevant to the limited question whether a summary judgment
motion that was not directed to her, and to which she justifiably
did not respond, was properly granted against her. It was not.
DISPOSITION
The judgment as to Helena Kimble is reversed. Helena
Kimble is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J
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