Filed 1/24/23 Tate v. Chavez CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
LIONEL TATE, SR.,
Plaintiff and Appellant,
A163330
v.
L. CHAVEZ, et al., (Solano County
Super. Ct. No. FCS045456)
Defendants and Respondents.
California state prisoner Lionel Tate, Sr. (Tate), sued the California
Department of Corrections and Rehabilitation (Department) and individual
correctional officers L. Chavez and L. Myers, alleging the Department
improperly disposed of his personal property and retaliated against him after
he filed a claim about his lost property. The opposing parties filed competing
motions for summary judgment, and the trial court granted defendants’
motion and denied Tate’s motion. Tate filed a request for clarification, which
was denied. Tate appeals.1
The register of actions in the clerk’s transcript does not reflect that a
1
judgment was entered following the court’s order granting defendants’ motion
for summary judgment. The parties do not raise appealability as an issue
and instead treat the court’s order as an appealable judgment. While an
order granting summary judgment is not itself an appealable order, we will
exercise our discretion and construe the order granting summary judgment in
1
We conclude defendants made a prima facie showing that they were
entitled to summary judgment and Tate failed to raise a triable issue of
material fact. On appeal, Tate has failed to show any reversible error.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Under prison regulations, when an inmate is not allowed to possess an
item of personal property, the inmate may choose to have the item (1) mailed
at the inmate’s expense to an address, “provided by the inmate,” of an
individual willing to accept the personal property, (2) returned to the sender
at the inmate’s expense, (3) donated to a charitable organization, (4) donated
to the facility, or (5) disposed of according to facility procedures. (Cal. Code
Regs., tit. 15 (15 CCR), § 3191(c).) The first two options are available only
when the inmate has sufficient trust account funds. (Id., § 3191(c)(1)–(2).)
In 2012, the Department sent Tate out of state to serve part of his
prison sentence. At the out-of-state facility, Tate was allowed to purchase
items that are not permitted in California state prisons. In 2014, the
Department transferred Tate back to California State Prison Solano (CSP–
Solano), and he was not allowed to keep many of the items he bought out of
state. Tate chose to mail these items, but he never provided an address the
items could be mailed to. The Department eventually disposed of Tate’s
prohibited items of property giving rise to this lawsuit.
this case as incorporating an appealable judgment. (See Wilkin v.
Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806,
819–820 [“In the interests of justice and to avoid delay, particularly
considering the impacts the COVID-19 pandemic has had on court
operations, we exercise our discretion and construe the order granting
summary judgment as incorporating an appealable judgment”].)
2
Tate’s Allegations
Representing himself, Tate initiated this action in superior court in
June 2015 and filed his first amended complaint (the operative complaint) in
August 2016. He made the following factual allegations.
When the Department returned Tate to California prison, it gave him
chronos2 stating he had 30 days to “ ‘select an authorized method of disposal’
and have sufficient funds to accommodate [his] chosen method of disposal,”
but the Department then disposed of his property before the 30 days expired.
The chronos did not expressly state that Tate had to provide an address
where the property could be mailed.
Tate alleged Correctional Officer Chavez “filed false documents” stating
she checked his inmate trust account, and he had insufficient funds to send
his property to an address of his choice on certain dates when, in fact, he had
sufficient funds at all times.
Tate’s property from the out-of-state facility was issued to him in four
segments; the deliveries were on June 27, August 20, August 22, and
September 26, 2014, and his address book with the address to mail his
property to was in the last delivery.
Tate alleged Chavez prematurely disposed of his property on three
occasions: July 29, (property worth $679), September 16 ($227.90), and
October 24, 2014 ($ 293.10).
After Tate filed this lawsuit on June 8, 2015, he received an
administrative appeal decision in which the Department accepted
2 A “chrono” is a form used to document information about inmates. (In
re Stoneroad (2013) 215 Cal.App.4th 596, 606, fn. 4; 15 CCR § 3000
[definition of “General Chrono”].)
3
responsibility for the loss of his property and ordered CSP–Solano to
compensate him. CSP–Solano has not compensated him.
Tate also alleged the Department retaliated against him for filing his
property claim by removing him from his job assignment. He alleged the
Department, through Correctional Officer Myers, “used a Department
Operation Manual section that didn’t exist” to remove Tate from his job
assignment and then cited a section that was implemented after he was
removed to justify its action. A correctional officer told Tate, “ ‘Staff don’t like
inmates who file claims against staff.’ ” Tate alleged removing him from his
job assignment violated his right to equal protection of the law and his “right
against reprisal for filing claims in court.”
Tate brought a cause of action for negligence (checking the box for
“General Negligence” on a Judicial Council form complaint) and sought
compensatory damages of $1,200 for his lost personal property. He also
sought exemplary damages for “fraud” related to Chavez filing “false
documents” about Tate having insufficient funds to mail his property and for
“malice” and “oppression” related to his removal from his job assignment.
Tate attached a number of documents to his complaint, including a
Government Claims Form showing he sought $1,200 for lost property in
December 2014, a “CDCR Inmate Statement Report” listing his trust account
balance from June 1, 2014, to January 9, 2015, and various administrative
appeals he pursued with CSP–Solano in 2014, 2015, and 2016.
Removal to Federal Court and Remand
In October 2016, defendants removed the action to federal court based
on Tate’s retaliation allegations, which appeared to raise a federal
constitutional claim. The case was remanded to superior court in February
2017 after Tate disavowed any federal claims.
4
Defendants’ Motion for Summary Judgment
In March 2020, defendants filed a motion for summary judgment and
supporting evidence, including declarations from (1) defendant Chavez, (2)
the Acting Chief of the Department’s Office of Appeals A. Vasquez, and (3)
CSP–Solano litigation coordinator N. Difuntorum. The motion also relied on
Tate’s deposition testimony.3
Evidence
Chavez stated she had worked in Receiving and Release (R&R) at CSP–
Solano, where her duties included issuing property to arriving inmates,
logging their personal property, and confiscating personal property deemed to
be contraband, all of which “was always done in front of the inmate.” She
described her interactions with Tate regarding three separate deliveries of
prohibited items to Tate after his transfer to CSP–Solano in 2014.
First, on June 27, 2014, Chavez reported on a Form 128–B (that is, a
chrono (In re Cabrera (2013) 216 Cal.App.4th 1522, 1526, fn. 4)) that she had
spoken to Tate about an X-Box 360 game system, two controllers, an X-Box
360 “power-pack,” an RCA television, a remote control, and related cables.
Chavez told Tate this property was not permitted and he had to “select a
method of disposal within the allotted time frame.” Her handwritten notes
on the chrono indicated that Tate chose to mail his property, but he did not
provide an address. More than 30 days later, on July 29, 2014, Chavez
prepared a chrono informing Tate, “Your refusal to provide funds/address
and/or other means of disposal within the thirty (30) day notice . . . provided
to you on 6/27/14 necessitated R&R to confiscate and dispose of this
property.”
3Tate apparently did not request the reporter’s transcript of his
deposition as part of the clerk’s transcript on appeal.
5
Second, on August 22, 2014, Chavez prepared a chrono regarding a
Casio keyboard and keyboard cover advising Tate the property was not
permitted. Chavez told Tate he had to provide an address to mail the
property to, but her notes indicated he did not provide an address. On
September 16, 2014 (before 30 days had passed from the August 22 chrono),
Chavez prepared a chrono that informed Tate his keyboard and cover were
disposed of because of his “refusal to provide funds/address and/or other
means of disposal within the thirty (30) day notice . . . provided to you on
8/22/14 . . . .” In her declaration, however, Chavez stated that it was later
determined the keyboard and cover “had not actually been disposed of yet.”
(As will be seen, after Tate filed an administrative appeal about the keyboard
and cover, the items were discovered, and Tate was given another 30 days to
provide an address where they could be mailed.) In the August 22 chrono,
Chavez noted that she had checked Tate’s trust account and, according to the
preprinted form, he had “insufficient funds to pay for the mail out of
unauthorized items” on (as handwritten by Chavez) “8/22,” “9/02,” “9/10,” and
“9/16.”
Third, on September 26, 2014, Chavez prepared a chrono regarding 13
CD’s, 6 cassettes tapes, a tape cleaner, a pair of shorts, and a pair of gloves.
The chrono advised Tate the property was not permitted. Again, Chavez told
Tate he had to provide an address to mail the property to, but her notes
indicated he did not provide an address. Before 30 days had passed, on
Friday, October 24, 2014, Chavez prepared a chrono informing Tate that his
property “was disposed of” on “10/24/14” because of his “refusal to provide
funds/address and/or other means of disposal within the thirty (30) day notice
. . . provided to you on 9/26/14 . . . .” According to Chavez’s declaration,
however, the property was not actually disposed of on October 24; Chavez
6
stated that when she wrote the chrono, she knew “Tate would not receive this
form until the following week” (italics added); and “if Tate had provided an
address on October 25 or 26, the property would have been mailed to the
address of his choice.” In the October 24 chrono, Chavez noted that she had
checked Tate’s trust account and he had “insufficient funds to pay for the
mail out of unauthorized items” on “9/26,” “10/9,” “10/16,” and “10/24.”4
Chavez’s declaration concluded, “At no time did Plaintiff Tate ever
provide an address to have his confiscated property mailed to. Accordingly,
the confiscated items were all disposed of pursuant to” Department and CSP–
Solano policy.
Acting Chief of the Office of Appeals Vasquez’s declaration described
the administrative appeal process, or grievance procedure, available to
inmates.5 Tate’s administrative appeal related to the Department’s disposal
of his keyboard and cover was designated institutional log number SOL-14-
02433. In that appeal, Tate sought $227.90 as the replacement cost for his
keyboard. A copy of the decision letter dated March 24, 2015, denying Tate’s
third and final level appeal on the matter was attached as an exhibit to
Vasquez’s declaration.
Copies of the chronos referenced were also attached as exhibits to
4
Chavez’s declaration.
5 According to Vasquez, in 2014, the process consisted of three formal
levels of appeal, and failure to pursue a grievance through the third and final
level constituted failure to exhaust administrative remedies (and see, e.g.,
Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 505 [prison grievance
process must be exhausted under the rule of exhaustion of administrative
remedies]). Vasquez stated that a review of the Office of Appeals’ records
showed Tate filed four third-level property-related administrative appeals
that “concerned any of the issues raised in Plaintiff’s [First] Amended
Complaint,” and they were all denied at the third level.
7
The third level appeal decision letter recounted that Tate was
interviewed about his appeal on November 7 and again on December 8, 2014.
At the December 8 interview, Correctional Lieutenant Martinez informed
Tate that he had recovered Tate’s keyboard and cover and explained that the
property was unauthorized. Tate was then provided an additional 30 days to
mail out the property, but Tate said he did not want to mail the keyboard
and, instead, wanted to wait for the result of his previous appeal asking for
the keyboard “to be ‘grandfathered’ into his allowable property.” According to
the letter, that previous appeal to “grandfather” the keyboard (so Tate could
keep it in prison) was denied at the second level. The third level appeal
decision letter in appeal SOL-14-02433 explained Tate’s appeal seeking
compensation for his keyboard was denied because his “property was
recovered and he was afforded an opportunity to render a disposal
disposition: therefore, he is not entitled to monetary compensation.”
CSP–Solano litigation coordinator Difuntorum’s declaration concerned
mailing addresses Tate knew or had access to by June 2014. Difuntorum
explained the Department maintains emergency contact information for each
inmate, which is provided by the inmate and is updated annually by the
inmate. At any time, an inmate may request or update his emergency
contact information by asking his correctional counselor. Tate’s prison
records showed he provided the Department a Stockton address for his son in
February 2014, and he provided a telephone number and San Diego address
for his sister in May 2014.
Defendants’ Arguments
As to Tate’s negligence claim, defendants argued the cause of action
failed because, assuming they owed him a duty of care, defendant did not
8
breach such duty, and Tate could not show defendants were the cause of any
of his alleged harms.
Tate alleged negligence in Chavez disposing of his property
prematurely—that is, before he had a full 30 days to provide an address—
three times, on July 29, September 16, and October 24, 2014. But Chavez’s
declaration showed Tate was given 30 days or more to provide an address on
the first and third occasions. And the third level appeal decision letter in
appeal SOL-14-02433 showed that Tate was given at least 30 days to provide
an address for mailing the keyboard and cover after it was discovered that
they had not been disposed of (as had been erroneously reported in Chavez’s
September 16, 2014, chrono). Accordingly, defendants argued, they did not
breach any duty they may have owed to Tate in dealing with Tate’s
prohibited personal property.
Tate alleged he did not receive his address book until September 26,
2014. But, defendants asserted, there was no evidence Tate ever submitted a
form 22 or form 6026 requesting additional time to provide an address.
Further, the evidence showed Tate had his address book in time to provide an
address for the second (keyboard and cover) and third (CD’s and other items)
sets of impermissible items.7 In any event, defendants argued, at all relevant
times, Tate “had the ability to acquire a valid address but made no attempts
to do so.” Defendants noted that Tate could have requested the mailing
6 In 2014 and 2015, form 22 was “an informal method to resolve inmate
issues” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1008), and an inmate
pursing an administrative appeal was required to use a form 602 (id. at p.
1009, fn. 2). (See former 15 CCR §§ 3086, 3084.2.)
7 Tate had until at least October 26, 2014, to provide an address for the
CD’s and other items, and he had until January 2015 to provide an address
for the keyboard.
9
address of either his son or his sister since those addresses were on file as his
emergency contacts before June 2014. In addition, Tate admitted that at the
relevant times, he knew his mother’s mailing address and he had telephone
conversations with another sister (and presumably, he could ask for an
address in these conversations).8 Thus, defendants asserted, Tate’s own
failure to make any efforts to provide or acquire a mailing address “was the
superseding cause of his own harm.”
As to any fraud or equal protection claims Tate may have alleged,
defendants argued such causes of action failed because he did not comply
with the Government Claims Act (Gov. Code, § 810 et seq.). The Government
Claim Act “establishes certain conditions precedent to the filing of a lawsuit
against a public entity,” including filing a timely claim for money or damages
with the public entity. (State of California v. Superior Court (2004) 32
Cal.4th 1234, 1237; Gov. Code, § 911.2, subd. (a) [a claim for injury to
personal property must be presented not later than six months after the
accrual of the claim].) Defendant argued Tate “never submitted claims for
fraud and equal protection to the Government Claims Program,” and failure
to comply with this requirement was fatal to his causes of action. (See
Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8
Cal.App.4th 729, 732 [“Failure to comply with the mandatory requirements
[of the Government Claims Act] is fatal to the cause of action”].)
As to any claim related to Tate’s removal from his job assignment,
defendants argued such claims failed because “there is no cause of action for
damages based on retaliation or equal-protection violations under the
California Constitution.”
8 Here, defendants cited Tate’s deposition transcript.
10
Tate’s Opposition and Motion for Summary Judgment
In April 2020, Tate filed a motion for summary judgment and
opposition to defendants’ motion for summary judgment. Opposing
defendants’ motion, Tate asserted they had “perpetuated a fraud upon this
court with false and deceiving filings and declarations.” Tate argued
defendants were attempting “to deceive this court by claiming [he] failed to
provide an address to mail his property to” without acknowledging the reason
he was unable to provide an address. He argued he did what was required of
him under the chrono Chavez gave him June 27, 2014, in that he (1) selected
an authorized method of disposal that day, which was “send home” and (2)
had sufficient funds to pay for the mailing. And he argued, he was prevented
from giving an address to mail his property to because “Chavez disposed of
[his] property before issuing [him] his property that had the address that [he]
would have mailed his property to.”
Tate argued the chronos issued by Chavez said “nothing about [Tate]
providing an address to mail the property to within 30 days.” He suggested
Chavez “could have written on the [chrono] ‘You have 30 days from the day of
this chrono to provide an address to mail the property to.’ ” He reiterated
that Chavez had written in the chronos that she reviewed his trust account
and found an insufficient balance on multiple occasions, but this was not
true; he always had sufficient funds.9 (Defendants did not dispute that he
had sufficient funds to pay for mailing his property at all relevant times.)
Finally, Tate argued that Chavez’s statement in her declaration that the CD’s
and other items were not disposed of on October 24, 2014, was contradicted
9Tate cited a third level appeal decision letter with log number OOA-
14-06453, dated June 11, 2015, which stated that a review of his trust
account statements showed Tate “had more than sufficient funds to mail his
property on all the dates listed on the [chrono] authored by CO Chavez.”
11
by the chrono in which Chavez documented that the “unauthorized property
was disposed of on 10/24/14.”
As to the evidence that at all relevant times he knew or had access to
the addresses of his mother, son, and sister, Tate asserted none of these was
the address he would have mailed his property to. Rather, he claimed he
would have sent his property to his ex-girlfriend, and neither his mother, nor
his son, nor his sister knew this ex-girlfriend’s address or telephone number.
Tate argued, “The only way [his] property could justifiably be disposed
of, based on the chronos issued to Plaintiff on 6-27-14, 8-22,14 and 9-26-14, is
if Plaintiff ha[d] insufficient funds to accommodate the cost to mail the
property to ‘an address of an individual willing to accept the personal
property’ [citing 15 CCR § 3191(c)(1)]. Defendant L. Chavez fraudulently
made such claim.”
Tate disputed defendants’ assertion that he never requested additional
time to provide an address, but he cited evidence that indicated only that he
requested his property be held until his appeal regarding “grandfathering”
his property was completed. Tate did not present any evidence showing he
asked for additional time to obtain a mailing address.
In support of his own motion for summary judgment, Tate argued he
was entitled to judgment on his negligence claim because the Department
“admit[ted] liability” in the third level appeal decision in his administrative
appeal with log number OOA-14-06453. He seemed to disavow any separate
causes of action for fraud, retaliation, or equal protection violation, asserting
he previously “made it clear that any claim of fraud, retaliation, or equal
protection violation was for exemplary damages (punitive damages) on the
12
negligence claim. The exemplary damages is not an independent cause of
action.”10
Tate did not file a separate statement of undisputed facts in support of
his motion for summary judgment as required by subdivision (b)(1) of Code of
Civil Procedure11 section 437c; nor did he file a response to defendants’
separate statement of undisputed facts as required by section 437c,
subdivision (b)(3).
Defendants’ Reply in Support of Summary Judgment
In their reply, defendants noted that in his opposition, Tate did not
dispute either that he was informed numerous times that he needed to
provide a mailing address where his prohibited property could be sent to or
that he knew he was supposed to provide a mailing address. Tate did not
dispute that “he made no attempts or requests to get” a mailing address for
his ex-girlfriend. Nor did Tate dispute defendants’ arguments that any fraud
or equal protection claim failed because he did not comply with the
Government Claims Act and any retaliation claim failed under California
law.
Tentative Rulings, Tate’s Reply, and the Trial Court’s Order on the Summary
Judgment Motions
The trial court issued a tentative ruling granting defendants’ motion
for summary judgment and denying Tate’s motion for summary judgment.
The tentative ruling indicated that Tate’s filings did not comply with the
statutory requirements that summary judgment motions and oppositions
include separate statements of facts supported by evidence and that Tate had
10In any event, Tate made no affirmative argument that he was
entitled to summary judgment on any cause of action other than negligence.
Further undesignated statutory references are to the Code of Civil
11
Procedure.
13
not submitted admissible evidence in support of his motion or in opposition to
defendants’ motion.
At a hearing on July 13, 2020, the parties appeared, and the court
noted it had not received Tate’s reply to defendants’ opposition to his
summary judgment motion and that Tate indicated he had been unable to
use the law library “since the [p]andemic.” The court continued the matter to
July 30, 2020.
On July 16, 2020, Tate’s reply was filed with the court. In his reply,
Tate asserted defendants’ opposition was served late and prevented him from
timely filing a reply. He accused defendants of destroying or delaying his
outgoing mail to prevent the court from considering his filings. He repeated
that Chavez falsely stated in chronos that his trust account had insufficient
funds. He explained why the relatives he was in contact with could not
receive his mail (they “had more things to worry about than having me send
my property to them to add to their worries”). He accused the Attorney
General of committing fraud in the opposition to his motion.
The trial court issued another tentative ruling similar to the first one
granting defendants’ motion for summary judgment and denying Tate’s
motion. On July 30, 2020, the parties appeared, the trial court heard oral
argument, and the matter was taken under submission.
On September 25, 2020, the trial court filed its written order ruling on
the summary judgment motions. The court adopted its tentative ruling. It
noted Tate failed to comply, or attempt to comply, with the requirements that
he provide (1) a separate statement of undisputed material facts supporting
his own motion with reference to supporting evidence (§ 437c, subds. (b)(1)
and (b)(2)) in opposition to defendants’ motion, a separate statement
responding to the movants’ material facts, indicating whether he “agrees or
14
disagrees that those facts are undisputed” and, for disputed facts, “reference
to the supporting evidence” (id., subd. (b)(3)). The court stated that failure to
comply with these requirements constituted sufficient ground for denying
Tate’s motion for summary judgment (id., subd. (b)(1)) and granting
defendants’ motion (id., subd. (b)(3)).
The court further observed, “Plaintiff has not submitted any admissible
evidence in support of his motion or in opposition to Defendants’ motion.
Plaintiff does not present any affidavits, declarations, admissions, answers to
interrogatives, depositions, or matters for which judicial notice has been
sought. (. . . § 437c, subds. (b)(1), (b)(2).) The court did review and consider
Plaintiff’s Reply to Defendants’ Opposition to his motion filed on July 16,
2020, after the initial hearing date set for the motion. Although it is executed
under penalty of perjury such that parts of it at least can be considered an
affidavit or declaration, most of it is argumentative and, substantively, it
fails to dispute material facts Defendants cite in support of their motion, or
establish undisputed material facts in support of Plaintiff’s motion.”
Subsequent Procedural History
On October 13, 2020, Tate filed a “Request for Clarification” regarding
the court’s order on summary judgment. Tate wrote that the court’s order did
not mention his claim that defendants delayed or destroyed his mail and did
not address defendants’ allegedly untimely filing. Tate admitted his own
filings were “not in the format required by this court” but asserted he “has
disputed most of if not all of the facts that defendants claim are undisputed.”
Tate requested that the court “state[] the material facts cited by defendants
that plaintiff has not disputed . . . .”
Defendants opposed Tate’s request, which they characterized as a
motion for reconsideration. They argued Tate had not identified any new or
15
different facts, circumstances, or law as required for a motion for
reconsideration under section 1008.
On March 9, 2021, the trial court issued an order to show cause why
the case should not be dismissed for failure to bring the matter to trial within
three years of its commencement pursuant to section 583.420, subdivision
(a)(1) and (2)(A).
On May 5, 2021, Tate filed a response to the order to show cause and
requested appointment of counsel. In his response, Tate accused defendants
of retaliating against him for filing this case by taking him “on the ‘Freddy
Gray experience’ ” after a surgery, refusing to allow him in groups
recommended by the Board of Prison terms so he could qualify for elderly
parole, and “put[ting] an illegal hold on part of [his] funds.” He requested the
court appoint him counsel because defendants were not allowing him
adequate use of the law library and he lacked funds to hire an attorney. Tate
argued the Covid-19 pandemic and “being constantly moved, isolated, and
quarantined,” along the with defendants’ “numerous instances of retaliation”
caused delay in his pursuit of his lawsuit.
On June 7, 2021, the trial court held a hearing on Tate’s “Request for
Clarification” and the court’s order to show cause. In a written order filed
July 15, 3021, the court denied Tate’s request for clarification, finding its
order of September 25, 2020, “was sufficient to provide Plaintiff with all the
requisite information needed,” and discharged its order to show cause.
DISCUSSION
A. Summary Judgment
1. Legal Principles and Standard of Review
A “motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that
16
the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd.
(c).) “[T]he party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law. . . . There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted (Aguilar).)
“[T]he party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact; if he carries his burden of production, he causes a shift,
and the opposing party is then subjected to a burden of production of his own
to make a prima facie showing of the existence of a triable issue of material
fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
We generally review a court’s decision on a motion for summary
judgment de novo (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1042),
but we review a ruling granting or denying summary judgment based on
failure to comply with the separate statement requirements of section 437c,
subdivision (b), for abuse of discretion (Rush v. White Corp. (2017) 13
Cal.App.5th 1086, 1097).
“The appellant has the burden of showing error occurred. (See Howard
v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443, Frank and
Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) An appellant
must support his argument in the briefs by appropriate references to the
record, which includes providing exact page citation. (Cal. Rules of Court,
rule 14(a)(1)(C); Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d
1203, 1205.) ‘An appellate court is not required to search the record to
17
determine whether or not [it] supports appellants’ claim of error. It is the
duty of counsel to refer the reviewing court to the portions of the record which
support appellants’ position.’ ” (Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1140–1141.)
“We treat a party who represents himself on appeal as we would any
other party or attorney.” (Denny v. Arntz (2020) 55 Cal.App.5th 914, 920.)
2. Analysis
Subdivision (b)(1) of section 437c provides that a motion for summary
judgment “shall be supported by affidavits, declarations, admissions, answers
to interrogatories, depositions, and matters of which judicial notice shall or
may be taken. The supporting papers shall include a separate statement
setting forth plainly and concisely all material facts that the moving party
contends are undisputed. Each of the material facts stated shall be followed
by a reference to the supporting evidence.” (Italics added.) “The failure to
comply with this requirement of a separate statement may in the court’s
discretion constitute a sufficient ground for denying the motion.” (Ibid.)
Subdivision (b)(3) of section 437c requires that the opposition to a
summary judgment motion “include a separate statement that responds to
each of the material facts contended by the moving party to be undisputed,
indicating if the opposing party agrees or disagrees that those facts are
undisputed. The statement also shall set forth plainly and concisely any
other material facts the opposing party contends are disputed. Each material
fact contended by the opposing party to be disputed shall be followed by a
reference to the supporting evidence.” (Italics added.) Again, the “[f]ailure to
comply with this requirement of a separate statement may constitute a
sufficient ground, in the court’s discretion, for granting the motion.” (Ibid.)
18
“ ‘The separate statement is not merely a technical requirement, it is
an indispensable part of the summary judgment or adjudication process.’ ”
(Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 415
(Kojababian).) “Its purpose is to ease the trial court’s burden and put the
moving party on notice of the evidence which is disputed by respondent.” (Id.
at p. 419.)
Tate contends the trial court abused its discretion in granting
defendants’ summary judgment motion and denying his summary judgment
motion based on Tate’s failure to file separate statements of fact in
compliance with section 437c, subdivisions (b)(1) and (b)(3). He relies on
Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1161, in which
the court observed, “An order based upon a curable procedural defect (such as
the failure to file a separate statement), which effectively results in a
judgment against a party, is an abuse of discretion.” (Italics added.) Instead,
“the proper response in most instances, if the trial court is not prepared to
address the merits of the motion in light of the deficient separate statement,
is to give the opposing party an opportunity to file a proper separate
statement rather than entering judgment against that party based on its
procedural error.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty
Co. (2005) 133 Cal.App.4th 1197, 1211.)
On the other hand, when a “plaintiff’s noncompliance with section 437c,
subdivision (b)(3) [i]s not the result of a procedural mistake, but rather [i]s
based upon a lack of admissible evidence in opposition to the motion,”
allowing additional time to file a separate st atement is not required because
the defect is not readily curable. (Kojababian, supra, 174 Cal.App.4th at p.
415.) Thus, in Kojababian, the Court of Appeal concluded the trial court
acted within its discretion in granting the defendants’ summary judgment
19
without affording the plaintiff additional time to file an opposing separate
statement where (1) the defendants made a prima facie showing in support of
their motion and (2) the plaintiff’s failure to file a separate statement was not
merely a curable procedural defect; it was the result of lack of evidence to
oppose the motion. (Id. at p. 420.)
Defendants argue there was no abuse of discretion here because they
made a prima facie showing in support of their motion and, in his opposition,
Tate failed to raise a triable issue of material fact. We agree with
defendants.
To succeed in his negligence claim, Tate had to show defendants owed
him a legal duty to use due care, they breached their legal duty, and the
breach was the proximate or legal cause of his injury. (See Beacon
Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59
Cal.4th 568, 573 [defining actionable negligence].)
Tate’s negligence claim is premised on the factual allegations that
(1) on three occasions, Chavez did not give him 30 days to provide an address
before disposing of his personal property, (2) the chronos regarding his
prohibited items did not state Tate had to provide a mailing address, (3) he
did not have access to an address because his address book was only
delivered on September 26, 2014, and (4) Chavez committed fraud by writing
that he had insufficient funds to mail his property when he had sufficient
funds.
Defendants’ evidence demonstrated that, contrary to his allegations,
Tate was given 30 days to provide a mailing address as to each of the three
batches of prohibited property. Thus, assuming defendants had a duty to
give Tate 30 days to provide an address, Tate could not establish defendants
breached that duty.
20
As to Tate’s complaint that the chronos did not explicitly instruct him
to provide an address, Chavez’s declaration established she “spoke with Tate
and informed him that he needed to provide an address to mail the property
to,” and Tate never claimed he did not know he was supposed to provide a
mailing address. Thus, assuming defendants had a duty to inform him he
needed to provide an address where his property could be mailed to,
defendants met that duty. (And, to the extent defendants should have given
him written notice, the lack of written notice was not the cause of the
disposal of his property since Tate knew he was supposed to provide an
address.)
As to the timing of the delivery of Tate’s address book, defendants
noted Tate never asked for additional time to provide a mailing address, and
they presented evidence that Tate knew or had access to the addresses of his
mother, sister, and son. Tate himself asserted he selected “send home” as his
method of disposal on June 27, 2014, and he offered no evidence that he ever
asked for additional time to provide a mailing address. He also admittedly
had access to his address book before the second and third batches of
prohibited items were disposed of, but he did not provide an address. Tate
does not explain what duty defendants may have breached in respect to the
address book. Moreover, given that his address book was delivered to him on
September 26, 2014, and he never provided a mailing address after that, Tate
cannot show that the prior absence of his address book was the cause of his
failure to provide a mailing address. As defendants argue, Tate’s failure to
obtain and provide a mailing address when he was able to do so “was the but-
for and proximate cause of his loss.”
Finally, while it is understandable Tate would be upset that Chavez
mistakenly reported on more than one occasion that he had insufficient funds
21
to pay for the mailing of his property, he offers no evidence that these
misstatements caused him injury. The chronos all explained his property
was disposed of because he refused to provide funds or an address; they did
not say his items were disposed of because he lacked sufficient funds. Chavez
stated that if Tate had provided an address, his property would been mailed
to the address, but at no time did he provide a mailing address. Tate has
never offered any evidence that Chavez’s misstatements (or what he calls
“fraud”) were the cause of the loss of his property.
In sum, defendants’ summary judgment motion and supporting
evidence made a prima facie showing that Tate’s negligence claim failed as a
matter of law, and Tate failed to rebut their showing with evidence raising a
triable issue of material fact.12 On appeal, Tate fails to identify evidence that
he would have cited to raise a triable issue of material fact had he been given
further opportunity to comply with the separate statement requirements of
section 437c, subdivision (b)(1) and (3). On this record, it appears Tate’s
failure to file a separate statement was not merely a curable procedural
defect; it was the result of lack of evidence to oppose the motion. As a result,
it was not an abuse of discretion for the trial court to grant defendants’
12 Defendant also made a prima facie showing that Tate could not
establish claims of fraud, violation of equal protection, or retaliation under
state law. Defendants argued any fraud or equal protection claim was barred
because Tate did not comply with the Government Claims Act. (See Willis v.
City of Carlsbad (2020) 48 Cal.App.5th 1104, 1119 [with certain exceptions,
“the timely filing of a written government claim is an element that a plaintiff
is required to prove in order to prevail on his or her cause of action”].) They
argued Tate could not bring a claim of retaliation based on California law.
(See MHC Financing Limited Partnership Two v. City of Santee (2010) 182
Cal.App.4th 1169, 1183–1184 [ a claim of violation of the state constitutional
right to petition does not provide a right to recover damages].) In his
opposition, Tate did not respond to these arguments. Instead, he indicated
his only cause of action was for negligence.
22
summary judgment motion. (See Kojababian, supra, 174 Cal.App.4th at p.
420.)13
B. Remaining Issues
Tate appeals the denial of his request for clarification but does not
show the trial court erred. He accuses the trial judge of bias, asserting bias
“is clear from the record in this case,” but the record does not demonstrate
bias. Tate argues the defendants filed or served some of their papers late in
violation of section 1013, but he does not explain how such alleged violations
resulted in reversible trial error. He accuses defendants of “fraud in [their]
filings in the superior court,” but the omissions he describes do not constitute
fraud.
“An appellate court is not required to examine undeveloped claims, nor
to make arguments for parties.” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 106.) Further, “the appellant bears the duty of spelling out
in his or her brief exactly how [an alleged] error caused a miscarriage of
justice.” (Ibid.) In this case, Tate has not demonstrated a miscarriage of
justice.
DISPOSITION
The judgment is affirmed.
13Alternatively, even if the trial court abused its discretion and Tate
should have been afforded an opportunity to file compliant separate
statements, Tate has not shown that the error was prejudicial since he has
not identified evidence that raises a triable issue of material fact. (See
Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209
Cal.App.4th 820, 833 [assuming the trial court abused its discretion in
granting a motion for summary judgment without affording the opposing
party an opportunity to correct defects in his separate statement, the
appellate court “would not reverse the judgment, because any error was not
prejudicial”].)
23
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A163330, Tate v. Chavez, et al.
24