Filed 1/31/22 Smith v. Sprouts Farmers Market CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
DONNA SMITH, B303727
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC675730)
v.
SPROUTS FARMERS MARKET, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Donna Smith, in pro. per, for Plaintiff and Appellant.
Bradley & Gmelich, Lindy F. Bradley, Mark I. Melo and
Dawn Cushman for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Donna Smith appeals from a judgment entered
against her and in favor of defendant SF Markets, LLC.
(erroneously sued as Sprouts Farmers Market, Inc.).1 Plaintiff
urges the judgment should be reversed because the trial court
erroneously granted defendant’s motion to compel plaintiff to
appear for an independent medical exam (IME) and issued a
flawed and incomplete settled statement. We conclude that
plaintiff has failed to demonstrate prejudicial error, and thus we
will affirm.
PROCEDURAL BACKGROUND
A. Complaint, Discovery Disputes, and Judgment
Plaintiff filed the present action for negligence and
premises liability against defendant in September 2017. The
operative complaint alleged that plaintiff suffered serious bodily
injuries as a result of slipping and falling on a slippery substance
while shopping at a Sprouts Farmers Market. Plaintiff claimed
1 Plaintiff also purported to appeal from orders entered on
December 11, 2018, and March 1, March 6, April 2, April 3,
June 5, October 15, November 12, and November 14, 2019. The
trial court issued prejudgment orders on several of these dates—
specifically, on March 1, 2019, the court ruled on defendant’s
motion to compel plaintiff’s deposition; on April 2, 2019, the court
granted defendant’s motion to compel an independent medical
exam; on June 5, 2019, the court granted defendant’s motion for
summary judgment; and on October 15, 2019, the court denied
plaintiff’s motion to strike/tax costs. These prejudgment orders
are not separately appealable; they are, however, reviewable as
part of plaintiff’s appeal from the judgment. (Code Civ. Proc.,
§§ 904.1, 906; Abramson v. Juniper Networks, Inc. (2004)
115 Cal.App.4th 638, 648.) It does not appear that orders were
entered on the remaining dates.
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to have suffered general and special damages in excess of $1.5
million.
On September 24, 2018, defendant filed a motion for
summary judgment, with a hearing set for December 5, 2018.
At plaintiff’s request, the trial court continued the hearing six
months, to June 5, 2019.
In January 2019, defendant filed a motion to compel a
second session of plaintiff’s deposition. On March 1, 2019, based
on the parties’ stipulation, the court ordered plaintiff’s deposition
to go forward on March 22, continued the motion to compel to
April 5, and agreed to take the motion off calendar if plaintiff’s
deposition was completed as scheduled.
In March 2019, defendant filed a motion to compel plaintiff
to submit to an IME. Over plaintiff’s objection, the trial court
granted the motion on April 2, 2019.
Plaintiff failed to file an opposition to defendant’s motion
for summary judgment prior to the June 5, 2019 hearing date.
However, plaintiff appeared at the hearing with a brief and
exhibits, requesting permission to file a late opposition. The trial
court heard argument on plaintiff’s request to file a late
opposition and then took the matter under submission. The same
day, the court denied the request to file a late opposition and
granted defendant’s motion for summary judgment.
Defendant filed a memorandum seeking costs of $4,607.
Plaintiff filed a motion to strike or tax costs, which defendant
opposed. On October 15, 2019, the trial court denied plaintiff’s
motion.
The trial court entered judgment for defendant on
November 12, 2019, which included an award of costs to
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defendant as prevailing party. Plaintiff timely appealed from the
judgment.
B. Plaintiff’s Request for a Settled Statement
Plaintiff filed a proposed settled statement with the trial
court on April 24, 2020. Plaintiff asked the court to settle a
statement concerning the hearings on the motions to compel
plaintiff’s deposition, to compel an IME, for summary judgment,
and to strike/tax costs.
Defendant filed a response to plaintiff’s proposed settled
statement on May 13, 2020, and plaintiff filed amended proposed
settled statements on July 8 and September 4, 2020.
On September 22, 2020, the court issued an order finding
that corrections were needed “for the settled statement proposed
by the appellant to be an accurate summary of the evidence and
testimony for the issues the court addressed in the order or
judgment being appealed,” and attached a modified settled
statement. The parties were given 20 days to serve and file
proposed modifications or objections. On October 13, 2020, the
court filed and certified the settled statement.
DISCUSSION
Plaintiff contends the court abused its discretion by
(1) ordering an IME, and (2) denying her a complete appellate
record by issuing a flawed and incomplete settled statement. She
therefore urges this court to reverse the judgment, as well as the
trial court’s orders granting defendant’s motion for summary
judgment, granting defendant’s motions to compel plaintiff to
appear for deposition and for an IME, denying plaintiff’s motion
to tax costs, and sustaining defendant’s objections to plaintiff’s
proposed settled statement. For the reasons that follow,
plaintiff’s contentions lack merit.
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I.
The Trial Court Did Not Prejudicially Err
by Ordering an Independent Medical Exam
Plaintiff contends the trial court abused its discretion by
granting defendant’s motion to compel an IME. In support, she
urges that the trial court failed to consider a letter submitted by
defendant’s independent medical examiner, Dr. Rad; defendant
did not make a good faith effort to meet and confer regarding the
IME prior to filing the motion; and plaintiff had already attended
and participated in an IME.
“ ‘ “Management of discovery generally lies within the
sound discretion of the trial court.” [Citation.] “Where there is a
basis for the trial court’s ruling and it is supported by the
evidence, a reviewing court will not substitute its opinion for that
of the trial court. [Citation.] The trial court’s determination will
be set aside only when it has been demonstrated that there was
‘no legal justification’ for the order granting or denying the
discovery in question.” ’ (Maldonado v. Superior Court (2002)
94 Cal.App.4th 1390, 1396–1397.)” (Lickter v. Lickter (2010)
189 Cal.App.4th 712, 740.) Further, where, as here, an appellant
has not sought writ review of the discovery order, but instead
seeks review on an appeal from the judgment following a
successful summary judgment, she must show “not only that the
trial court erred, but also that the error was prejudicial.” (Ibid.)
In other words, plaintiff must demonstrate that it is reasonably
probable the trial court would not have granted summary
judgment against her had the court not ordered the IME. (Ibid.;
see also MacQuiddy v. Mercedes-Benz USA, LLC (2015)
233 Cal.App.4th 1036, 1045.)
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Here, plaintiff has utterly failed to demonstrate a
reasonable probability that the trial court would not have entered
summary judgment for defendant had it not ordered an IME.
Indeed, plaintiff has nowhere suggested that defendant was not
entitled to an IME; instead, her sole contention appears to be
that the order compelling an IME was inappropriate because she
had agreed to submit to an IME and the issue could have been
worked out cooperatively by the parties without the court’s
intervention. Thus, because plaintiff has failed to demonstrate
that the trial court’s discovery ruling was prejudicial, we find no
reversible error.
II.
The Trial Court Did Not Prejudicially Err
by Issuing the Settled Statement
Plaintiff contends the trial court abused its discretion by
failing to include in the settled statement summaries of
defendant’s arguments (1) in support of the motion for summary
judgment, (2) in opposition to plaintiff’s motion to continue the
summary judgment hearing, and (3) in opposition to the motion
to tax costs. Plaintiff also contends the trial court erroneously
sustained defendant’s objections to plaintiff’s July 8 and
September 4, 2020 proposed settled statements.
California Rules of Court, rule 8.137, provides that an
appellant may proceed on a settled statement in lieu of a
reporter’s transcript if, among other things, the designated oral
proceedings in the superior court were not reported by a court
reporter. (Cal. Rules of Court, rule 8.137(b)(1)(A).) A settled
statement should contain a “condensed narrative” of the
proceedings from which appeal is taken—i.e., “a concise factual
summary of the evidence and the testimony of each witness
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relevant to the points that the appellant states . . . are being
raised on appeal.” (Cal. Rules of Court, rule 8.137(d)(2)(A), italics
added.)
In the present case, plaintiff does not contend that any
“evidence” or “testimony” was omitted from the separate
statement, and, indeed, no evidence or testimony was introduced
at the hearings at issue. Instead, plaintiff urges only that the
trial court failed to include defendant’s counsel’s argument, which
is neither evidence nor testimony. (Fuller v. Tucker (2000)
84 Cal.App.4th 1163, 1173 [“Argument of counsel is not
evidence.”]; Davenport v. Blue Cross of California (1997)
52 Cal.App.4th 435, 454 [same].)
Further, plaintiff does not demonstrate any way in which
failing to include defendant’s counsel’s argument in the settled
statement resulted in any prejudice to plaintiff. Arguably, the
omission of defendant’s counsel’s argument could have prejudiced
defendant—for example, by depriving defendant of the ability to
demonstrate that a particular contention was preserved—but we
cannot conceive of any way in which this omission could have
prejudiced plaintiff.
Plaintiff has also failed to demonstrate that she suffered
any prejudice as a result of the trial court’s rulings on defendant’s
objections to her July 8 and September 4, 2020 proposed settled
statements. Defendant objected to the July 8 settled statement
on the ground that it had not received its service copy and thus
had not had the opportunity to file objections; the court thus
considered plaintiff’s nearly-identical September 4 proposed
settled statement, which defendant had received and to which it
had filed proposed modifications. The court did not adopt
defendant’s proposed modifications wholesale; instead, it found
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that neither plaintiff’s settled statement nor defendant’s
proposed modifications were “entirely accurate,” and thus the
court rewrote a portion of the settled statement to reflect its
corrections. Plaintiff has not demonstrated either that the court
erred in doing so or that she was prejudiced as a result.
To demonstrate that a judgment or order should be
reversed, an appellant must demonstrate prejudicial error—that
except for the error, a different outcome was probable. (See
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802; see also
Brue v. Al Shabaab (2020) 54 Cal.App.5th 578, 588–589 [“Absent
any showing of prejudice, we cannot reverse the trial court’s
order.”].) Because plaintiff has failed to do so, we therefore will
affirm the judgment.
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DISPOSITION
The judgment is affirmed. Defendant is awarded its
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
WINDHAM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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