Horn v. Wal-Mart Stores, Inc. CA3

Filed 10/1/20 Horn v. Wal-Mart Stores, Inc. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----

JOSHUA HORN, C089684

Plaintiff and Appellant, (Super. Ct. No.
CVCS160001624)
v.

WAL-MART STORES, INC.,

Defendant and Respondent.

Plaintiff Joshua Horn appeals following defendant Wal-Mart Stores, Inc’s
successful motion for summary judgment. On appeal, Horn raises an array of contentions
under headings including: (1) “Trial Court’s Retaliation/Abuse of Discretion”; (2) “Trial
Court’s Racial and Disability Discrimination”; (3) “Trial Court’s Refusal to Uphold the
California Constitution and Willful Neglect of Duty”; (4) “Trial Court’s Willful
Misinterpretation of [the California Rules of Court]”; and (5) “Trial Court’s
Employees[’] Breach of Oath and/or Affirmation.” (Capitalization omitted.)
We affirm.

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 FACTUAL AND PROCEDURAL BACKGROUND
The Pleadings
In 2016, Horn, acting in pro per, sued Wal-Mart for fraud and wrongful
termination. Two years later, he filed an amended complaint adding counts for
Americans with Disabilities Act discrimination, racial discrimination, retaliation,
intentional negligence, and intentional infliction of emotional distress.
Six months after that, the trial court granted Wal-Mart’s motion for summary
judgment. The court’s written order noted Horn had filed no evidentiary objections to
Wal-Mart’s evidence submitted in support of its motion. And Horn had filed no response
to Wal-Mart’s statement of undisputed material facts.
The court concluded summary adjudication was appropriate for all counts, for
reasons including that Wal-Mart undisputedly made no false misrepresentation of fact to
Horn, and Horn suffered no resulting damages; Wal-Mart’s actions were taken for a
legitimate business reason, and Horn could not show Wal-Mart’s actions were pretextual;
certain claims were time barred; and the Workers Compensation Exclusivity Act barred
other claims.
Between the time Horn filed suit and the time Wal-Mart was granted summary
judgment, Horn unsuccessfully moved to transfer venue,1 Walmart successfully moved to
compel discovery and for sanctions, and Horn brought multiple motions to continue.

1 In early 2019, Horn moved to transfer venue, averring he “suffered from racial
discrimination, and from habitual judicial misconduct being condoned by this Court’s
Staff . . . as well as multiple judges of this Court . . . .” He wrote: “This Court clearly
does not have adequate judicial resources to try Mr. Horn’s case.” Wal-Mart opposed the
motion as untimely, lacking in evidence that the trial court should be disqualified, lacking
a timely preemptory challenge, and lacking evidence that a venue change would
convenience witnesses and promote the ends of justice. Horn did not file a response to
Wal-Mart’s opposition, and a subsequent minute order reflected the motion had been
“submitted without argument,” and denied.

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 Horn appealed from entry of judgment following the grant of summary judgment.2
DISCUSSION
On appeal, Horn is proceeding in pro per, as he did before the trial court. Pro per
litigants are required to follow the rules of appellate procedure; they are treated like any
other party and receive no greater consideration. (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1247.) Horn’s briefing suffers from a number of flaws.
I. Sanctions
Under the headings, “Trial Court’s Retaliation/Abuse of Discretion,” and “Trial
Court’s Racial and Disability Discrimination,” Horn challenges the award of sanctions as
part of Wal-Mart’s motion to compel.3 We find no error. (Capitalization omitted.)

2 While Wal-Mart acknowledges judgment is final and thus appealable, it argues the
underlying orders Horn challenges on appeal (the change of venue, discovery sanctions,
and the motions to continue) are neither final nor appealable. Wal-Mart thus asks that
portions of Horn’s briefs pertaining to those orders be struck. Not so. Horn may
challenge these orders as part of his appeal from the judgment. (Code Civ. Proc., § 906
[“the reviewing court may review the verdict or decision and any intermediate ruling,
proceeding, order or decision which involves the merits or necessarily affects the
judgment or order appealed from or which substantially affects the rights of a party”;
Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th
825, 852 [notice of appeal encompasses all nonappealable orders made before entry of
judgment]; Ash v. Hertz Corp. (1997) 53 Cal.App.4th 1107, 1112 [when transfer motion
denied, aggrieved party may obtain review from final judgment].)
3 Under a separate heading, “Discovery Disputes Between Parties,” Horn writes that
during status conference proceedings in September and November 2018, the trial court
stated that “some judges allowed parties to contact them whenever there was a dispute
and assist them in resolving them, and that he was not one of those said judges.” Horn
adds that the “trial court offered no other means of resolution to Mr. Horn’s discovery
disputes.” (Capitalization omitted.) We decline to address this contention. For one, the
statement is not reflected in the record. (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186 [“[A]ppellate courts have refused to reach the merits of an
appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable
substitute was provided”].) For another, Horn has failed to establish that this was error.

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 A. Additional Background
The day after Horn moved to transfer venue, Wal-Mart moved to compel
discovery responses and sought monetary sanctions for misuse of the discovery process.
Through a declaration, Wal-Mart represented that it had incurred $2,750 in attorneys’
fees in preparing the motion, $60 in filing fees, and anticipated incurring $3,910 total in
bringing the motion. Wal-Mart also cited Code of Civil Procedure sections 2030.290 and
2031.3004, which require the imposition of monetary sanctions when motions to compel
responses to interrogatories or production requests are unsuccessfully opposed.
Horn did not file an opposition. A subsequent minute order reflects the motion
was submitted with argument and taken under submission.
The trial court granted the motion, ordering Horn to respond to Wal-Mart’s
interrogatories, production requests, and request for admissions. It found Horn had
“abused and misused the discovery process by asserting objections without substantial
legal or factual justification and by failing to respond to defendant’s relevant discovery
requests.” It ordered Horn to pay Wal-Mart $1,750 in attorney fees and $60 in costs.
B. Analysis
On appeal, Horn challenges the trial court’s ruling on multiple grounds. He writes
that Wal-Mart’s counsel “failed to provide adequate legal fee quantification via any

(People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10 [declining to address claim without
argument or citation to relevant authority].)

Also under this heading “Plaintiff’s motion for transfer,” plaintiff appears to challenge
the denial of his motion to transfer venue. He writes that his “motion for transfer was
ignored by the trial court and was never fully addressed or ruled on.” (Capitalization
omitted.) We decline to address this contention, again for lack of argument or citation to
relevant authority. We note, however, that Horn failed to respond to Wal-Mart’s
opposition to the motion, which cited numerous deficiencies, and the motion was
submitted without argument at the hearing.
4 Undesignated statutory references are to the Code of Civil Procedure.

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method such as the Lodestar method . . . .” He avers the ruling was in retaliation for
filing a complaint with the Commission on Judicial Performance. He argues the trial
court “failed to substantiate why and how it came to its decision,” and failed to provide
“any case law, citation, statutory authority or publication of any kind expressing judicial
authority.” He also maintains the trial court ignored this court’s decisions regarding low-
income litigants, which purportedly “establish a precedent that prohibits courts from
imposing improper and/or unduly burdensome sanctions, penalties and/or legal fees/costs
against self-represented litigants of low-income with an inability to pay.”
Horn cites no authority supporting his claim that the order of sanctions was error.
Indeed, a trial court is required to award sanctions following a successful motion to
compel discovery responses, unless it finds the party subject to sanctions acted with
substantial justification or other circumstances make the imposition of sanction unjust.
(§§ 2030.290; 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare
Consultants (2007) 148 Cal.App.4th 390, 404 [“If a party fails to serve a timely response,
and the propounding party moves for and obtains a court order compelling a response, the
trial court must impose a monetary sanction against the delinquent party unless that party
acted with ‘substantial justification’ or the sanction would otherwise be unjust”].)
And Horn offers no explanation — neither here nor before the trial court — as to
how he acted with substantial justification or how sanctions were unjust, beyond his
frivolous suggestion the trial court acted in retaliation or his vague references to this
court’s decision regarding low-income litigants and the lodestar method.5 None of these
undermine the ruling.

5 The lodestar method — whereby the trial court determines the reasonable hours spent
multiplied by the reasonable hourly rate, “based on a careful compilation of the time
spent and reasonable hourly compensation of each attorney involved in the presentation
of the case” — is the primary method for establishing attorney’s fees in statutory fee-

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 This contention therefore fails.
II. Motions to Continue
Under the headings, “Trial court’s refusal to uphold the California Constitution
and willful neglect of duty,” and “Trial Court’s [Willful] Misinterpretation of [the
California Rules of Court],” Horn appears to challenge the trial court’s denial of his
motions to continue. We find no error. (Capitalization omitted.)
A. Additional Background
Horn filed his original complaint in 2016. Two years later, Wal-Mart moved for
summary judgment. In response, Horn moved to “dismiss” Wal-Mart’s motion for
summary judgment, arguing the motion was premature and should be dismissed to allow
Horn to conduct discovery.
In early November 2018, the trial court granted Horn’s request to conduct
discovery and reset the summary judgment hearing, then scheduled for January 28, 2019,
to April 15th, “to allow plaintiff to complete the necessary discovery and to file
appropriate opposition to pending Motion.”
In March 2019, Horn moved for a continuance. He wrote that he had a worker’s
compensation trial hearing (also involving Wal-Mart) to prepare for and attend, which
had been moved from February to April. He added: “It will be several months before I
will be able to adequately prepare my response to the Defendant’s motion for summary
judgment due to my conflicting engagement in a separate trial hearing . . . .”
Wal-Mart opposed the motion, arguing it was untimely noticed, and Horn had
failed to provide a declaration that essential facts may exist and why additional time is
needed to obtain them as required under section 437c subdivision (h). It also argued that
good cause had not been shown in that the case had been pending for more than two

shifting cases. (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th
744, 750–751.)

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years, Horn had had 175 days to oppose the motion for summary judgment, and a
previous continuance had been provided.
The motion was submitted without argument and denied as untimely noticed.
Three days later, Horn filed an ex parte motion for a continuance. He again wrote
in his declaration: “It will be several months before I will be able to adequately prepare
my response to the Defendant’s motion for summary judgment due to my conflicting
engagement in a separate trial hearing and the trial date’s continuation from the
previously set trial date was unanticipated by myself.”
Wal-Mart opposed the motion, arguing that under Rule of Court Rule 3.1204,6
Horn had failed to state the date, time and place of the presentation of his application and
made no attempt to determine if Wal-Mart would appear to oppose the application. It
further argued it was Horn’s lack of diligence that prevented the case from moving
forward.
Denying the ex parte motion, the trial court cited the failure to comply with ex
parte notice requirements.
Later at the summary judgment hearing, Horn again requested a continuance over
Wal-Mart’s objection. In its written order, the trial court explained that Horn’s “oral
request for another continuance was denied. Plaintiff had already been granted a two and
one-half month continuance of the original hearing date of this motion to complete
discovery to oppose this motion, and there was no good cause shown by plaintiff to grant
a second continuance.”
B. Analysis
On appeal, Horn contends the trial court abused its discretion in denying his
motion to continue. He argues the refusal to reschedule the hearing “provid[ed] the

6 Undesignated references are to the Rules of Court.

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Defendant’s legal counsel an advantage while presiding with a clear bias and favoritism
toward the Defendant’s legal counsel.” He takes issue with the court’s reliance on the
fact that a continuance had previously been granted, arguing he had not asked for an
extension, rather the extended deadline had been given at the court’s “own discretion,”
and Horn’s motion to dismiss was never ruled on.
He goes on to argue: “The trial court’s refusal to interpret the [Code of Civil
Procedure and Rules of Court] expeditiously, inexpensively, without encumbrance of
character, without impropriety and/or discrimination, as the Plaintiff was clearly involved
in a separate trial matter less than seventy-two (72) hours apart from the Defendant’s
motion for summary judgment hearing; shows that the Court has a sub-standard business
practice for the Plaintiff that is different from its standard business practice for the
Defendant.” We find no error.
“ ‘In seeking a continuance of a summary judgment motion, a plaintiff has
essentially two options. The first option is to comply with section 437c, subdivision (h),
which states, “If it appears from the affidavits submitted in opposition to a motion for
summary judgment or summary adjudication, or both, that facts essential to justify
opposition may exist but cannot, for reasons stated, be presented, the court shall deny the
motion, order a continuance to permit affidavits to be obtained or discovery to be had, or
make any other order as may be just. The application to continue the motion to obtain
necessary discovery may also be made by ex parte motion at any time on or before the
date the opposition response to the motion is due.” ’ ” (§ 437c, subd. (h); Levingston v.
Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315 (Levingston).)
“ ‘Where a plaintiff cannot make the showing required under section 437c,
subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary
standard applied to requests for a continuance.’ ” (Levingston, supra, 26 Cal.App.5th at
p. 315.) “ ‘This requires a showing of good cause.’ ” (Ibid.) On appeal, we will uphold
the refusal to grant a continuance unless the trial court has abused its discretion. (Ibid.)

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 Here, Horn has made no showing under section 437c, and we find no abuse of
discretion in denying an eleventh-hour discretionary continuance. After two years, Horn
was afforded a significant extension. And though he maintains it was the trial court’s
own discretion that gave rise to that continuance, the fact remains, that continuance was
ordered after Horn represented that more time was needed to conduct discovery. Nothing
else Horn has argued in support of his contention convinces us that the trial court
exceeded its discretion.
The contention therefore fails.
III. Summary Judgment
Finally, under the heading “Trial Court’s Employees[’] Breach of Oath and/or
Affirmation,”7 there appears to be a challenge to the order of summary judgment. Horn
writes that he “seeks reversal on the trial court’s ruling on the Defendant’s motion for
summary judgment, recommendation to the Commission on Judicial Performance for
suspension and removal of the [trial court judge].”8 (Capitalization omitted.) He adds that,
“the evidence shows exactly how the trial court’s ruling is founded on legal error and
judicial misconduct,” and goes on to say: “The trial court, by violating the Appellant’s
civil, constitutional and ADA rights has neglected its duty to public society and to the

7 Under this heading, Horn principally discusses how, while attempting to file his notice
designating the record on appeal, he was “met by stonewall discrimination.” He refers to
numerous court clerks and asserts there was “a collective effort put forth on behalf of the
trial court to collectively disallow the Plaintiff to achieve fair administration of
justice . . . .” We do not reach this contention as it is outside the record on appeal. We
are governed by the record, and we must disregard statements of facts having no support
in the record. (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.)
8 Contentions regarding the “recommendation to the Commission on Judicial
Performance for suspension and removal of the trial court’s judge . . . .” are not properly
before us.

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state of California in addition to failing and/or refusing to uphold and defend the U.S.
Constitution.”
To the extent Horn is challenging the grant of summary judgment, we simply note
that “ ‘ “[w]e review a grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. [Citation.]” [Citation.] Put another way, we exercise
our independent judgment, and decide whether undisputed facts have been established
that negate plaintiff’s claims.’ ” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49
Cal.App.5th 119, 123.)
Here, however, Horn makes no reference to the undisputed facts or their effect on
his claims. Given that Horn has, at best, raised a perfunctory challenge to the ruling, we
conclude this claim too fails. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99
[“Issues do not have a life of their own: if they are not raised or supported by argument
or citation to authority, we consider the issues waived”].)9

9 In his reply brief, Horn appears to raise an additional contention that Wal-Mart filed
“fabricated evidence” showing Horn was allowed to return to work after recovering from
his work-related injury. No citation to the record is provided. Having no obligation to
consider contentions raised for the first time in a reply brief, and seeing no good cause to
do so here, we decline to reach this contention. (People v. Baniqued (2000) 85
Cal.App.4th 13, 29 [“a point raised for the first time [in the reply brief] is deemed waived
and will not be considered, unless good reason is shown for failure to present it before”].)

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 DISPOSITION
The judgment is affirmed. Horn shall pay Wal-Mart’s costs on appeal. (Cal. Rules
of Court, rule 8.278.)

/s/
MURRAY, J.

We concur:

/s/
RAYE, P. J.

/s/
BLEASE, J.

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