Filed 4/19/24 Arnold v.

Alliance Construction CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE

KIMBLY ARNOLD et al.,

Plaintiffs and Appellants,
A168555
v.
ALLIANCE CONSTRUCTION et (Alameda County
al., Super. Ct. No. 21CV001328)
Defendants and Respondents.

In this action, plaintiffs Kimbly Arnold and Tommy Levias allege that
defendants Omar Garrido and Alliance Construction (Alliance; collectively
defendants) misled her about the employment of a prospective tenant. After
the tenant allegedly stopped paying rent, plaintiffs brought this action for
fraud and misrepresentation, and the trial court granted summary judgment
in defendants’ favor. Plaintiffs contend that the trial court erred in granting
summary judgment, that they were entitled to a continuance of the hearing
on the motion for summary judgment, and that a prior ruling deeming
certain facts admitted was erroneous. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Arnold brought this action in propria persona on November 1, 2021,
naming as plaintiffs herself and Tommy Levias, and naming as defendants

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Alliance, Garrido, and two other individuals who are not parties to this
appeal, Christopher D. Frazier and Asia L. Spikes.1 Levias, who is
apparently Arnold’s father, did not sign the complaint.
Plaintiffs allege that Frazier leased a unit from Arnold but failed to pay
his rent and violated the lease agreement in other ways. Before she entered
into the rental agreement, Arnold spoke with Garrido who, on behalf of
Alliance, provided false information about Frazier’s employment, salary, and
work hours. She based her decision to rent the unit to Frazier on this
information. Attached to the complaint is the lease agreement, which is
between Arnold as landlord and Frazier as tenant. Based on these
allegations, the complaint asserts a cause of action against Alliance and
Garrido for fraud and negligent misrepresentation. There is no allegation
that defendants made any misrepresentation to Levias or that he relied upon
anything they said.
Defendants served requests for admission on Arnold on September 13,
2022. (Code Civ. Proc., § 2033.010.)2 Arnold provided no response. On
December 1, 2022, defendants moved for an order that the truth of the
matters in the requests be deemed admitted, and they sought monetary
sanctions. (§ 2033.280, subd. (b).) It appears they also moved to compel
responses to interrogatories and requests for production of documents.
Arnold did not submit proposed responses to the requests for
admission, but on January 3, 2022 plaintiffs filed an opposition to

1 References in this opinion to “defendants” are to Alliance and Garrido

only.

All undesignated statutory references are to the Code of Civil

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Procedure.

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defendant’s motion to compel discovery, averring that Levias had been ill and
seeking an extension of time to respond to the outstanding discovery
requests, including the requests for admission.
The trial court issued a tentative ruling indicating it would grant
defendant’s motion to have the matters in the requests for admission deemed
admitted and order sanctions of $1,090. There were no appearances at the
January 13, 2022 hearing, and the court adopted the tentative ruling.3
Alliance and Garrido then moved for summary adjudication, based
largely on the facts deemed admitted. Those admissions included the
following: Garrido did not provide any false information to Arnold regarding
Frazier; Arnold did not rely on any statements Garrido made regarding
Frazier; Arnold did not speak to any third party regarding Frazier before the
tenancy began; Arnold failed to undertake a background check or credit check
on Frazier or Spikes; Arnold failed to mitigate her losses; Frazier paid his
rent until October 2020, when he applied for COVID-19 relief; and Arnold did
not suffer any damage as a result of Frazier’s breach of the rental agreement.
With the motion, defendants submitted a declaration of their counsel
attaching evidence that Arnold was acting on Levias’s behalf in this action
pursuant to a power of attorney that gave Arnold authority to act for him
with respect to claims and litigation, that Garrido did not interact with

3 In their January 6, 2023 reply to plaintiffs’ opposition to the motion

for an order establishing the admissions, defendants stated, apparently
erroneously, that plaintiffs’ opposition had not yet been filed with the court,
but defendants went on to address the points made in the opposition. For
reasons that are not clear, the court’s order referred to the motion as
unopposed, but even if this was error, appellants have not established
prejudice. That is, they have not established that any argument in their
opposition papers could have caused the trial court to decide the motion
differently.

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Levias in any manner, and that Arnold signed the lease with Frazier and
identified herself as the landlord or property manager in various
communications, including the salary verification form.
These facts, defendants argued, established that plaintiffs could not
show that defendants made any misrepresentations, that plaintiffs relied on
them, that plaintiffs suffered damages as a result, or that they tried to
mitigate their losses.
The notice of motion of the summary judgment hearing was filed and
served by overnight mail on April 27, 2023, with the hearing scheduled for
August 11, 2023. On July 17, 2023, Arnold, styling herself as acting in
propria persona and under a power of attorney under the Probate Code, filed
an opposition and request for a continuance of the summary judgment
motion. She provided a declaration stating she worked as an agent managing
the property on Levias’s behalf and that before she entered into the rental
agreement, Garrido told her Frazier had been gainfully employed with
Alliance for two years and was expected to continue his employment during
the COVID-19 pandemic. She asserted that she had recently located Frazier
and that the evidence he could give at a deposition would provide evidence
that defendants made false and misleading statements.
On August 11, 2023, the trial court denied the motion for a
continuance, finding that defendants had met their burden of production on
summary judgment and that plaintiffs failed to raise a triable issue of
material fact, that plaintiffs had not shown they diligently sought discovery,
and that they had no explanation for why any further discovery would not be
futile in light of the conclusive nature of the admissions.
The trial court granted summary adjudication in defendants’ favor on
the cause of action against them. In so doing, the court explained that

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defendants had met their initial burden to negate plaintiffs’ theory of the
case by establishing through deemed admissions that Arnold did not rely on
Garrido’s statements or suffer damages; that Garrido did not interact with
Levias; and that Arnold had been acting on Levias’s behalf under a power of
attorney. And, it concluded, plaintiffs had not produced admissible evidence
raising a triable issue of fact. The court entered judgement in defendants’
favor. This timely appeal ensued.
DISCUSSION
I. Initial Comments
At the outset, we note that plaintiffs have appeared in propria persona
on appeal. Although self-represented, they must follow the correct rules of
procedure and are held to the same standards as other litigants. (See Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) Their briefs on appeal are
replete with factual assertions unsupported by citations to the record. It is
the appellant’s burden to point out the portions of the record that support
their arguments, and we need not comb the record looking for error. (Del
Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) We may disregard
factual assertions that lack citations to the record. (Cassidy v. California Bd.
of Accountancy (2013) 220 Cal.App.4th 620, 628.) Points that are not stated
under a separate heading and supported by reasoned legal argument and
citation to authority may be treated as forfeited. (Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52 (Allen); Provost v. Regents of University of
California (2011) 201 Cal.App.4th 1289, 1294.) Nor need we examine
undeveloped claims or supply arguments for the parties. (Allen, at p. 52.)
And we do not consider points made for the first time in the reply brief. (See
Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of
Hayward (2011) 200 Cal.App.4th 81, 94, fn. 12.)

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II. Requests for Admission
Plaintiffs contend that defendants misused the discovery process, that
they should have met and conferred with Arnold, and that the trial court
should not have deemed admitted the matters in the requests for admission.
Responses to requests for admission are generally due within 30 days of
service. (§ 2033.250, subd. (a).) When a party fails to serve a timely
response, the requesting party may move for an order that the truth of the
matters specified in the requests be deemed admitted and for a monetary
sanction. (§ 2033.280, subd. (b).) The court must so order unless it finds that
the party to whom the requests were made has submitted a substantially
compliant response before the hearing on the motion. (§ 2033.280, subd. (c).)
An order deeming admitted the requested admissions is “conclusive and may
not be ‘contested through contradictory evidence.’ ” (People v. $2,709 United
States Currency (2014) 231 Cal.App.4th 1278, 1286; accord, St. Mary v.
Superior Court (2014) 223 Cal.App.4th 762, 775 (St. Mary).)
We see no impropriety here. Defendants served their requests for
admission on September 13, 2022, and there is no indication in the record
that Arnold ever served responses, either by the time they were due or before
the hearing on defendants’ motion several months later. Defendants were
not required to seek to resolve the matter informally through a meet and
confer process before seeking an order deeming the truth of the requested
matters admitted. (See St. Mary, supra, 223 Cal.App.4th at pp. 777–778;
Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 &
fn. 4, overruled on another ground in Wilcox v. Birtwhistle (1999) 21 Cal.4th
973, 983 & fn. 12.) On this showing, the trial court properly granted the
relief defendants requested. (See § 2033.280, subd. (c).)

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III. Summary Judgment
Plaintiffs also argue the trial court should not have granted defendants’
motion for summary adjudication. Summary judgment or adjudication is
proper if the papers and affidavits, together with “ ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, show ‘there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’ ” (Marez v. Lyft,
Inc. (2020) 48 Cal.App.5th 569, 576; § 437c, subd. (c).) A defendant may
make this showing “by proving one or more elements of the cause of action
cannot be established. [Citation.] Once the defendant has met that burden,
the burden shifts to the plaintiff to show the existence of a triable issue of
material fact as to that cause of action.” (Marez, at pp. 576–577.) We review
the trial court’s ruling de novo. (Id. at p. 576.)
Defendants met their initial burden here. They provided evidence that
Garrido interacted only with Arnold, not with Levias, and plaintiffs point to
no contrary evidence. And through the deemed admissions, Arnold admitted
that Garrido did not provide any false information regarding Frazier, that
she did not rely on any statements or information Garrido provided about
Frazier, and that she did not suffer any damages from Frazier’s breach of the
rental agreement. These admissions are fatal to the cause of action against
defendants for fraud and negligent misrepresentation, torts that include
among their elements a misrepresentation, actual reliance, and resulting
damage. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230–231.) The
trial court properly granted summary judgment.
In an argument that is difficult to decipher, Arnold suggests that her
power of attorney over Levias’s affairs was somehow misused in connection
with the motion for summary judgment. She asserts the power of attorney is

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a confidential document that she provided to defendants’ counsel in
connection with a dispute over a request for production of documents, and
seems to take the positions both that the power of attorney should not have
been used in connection with the motion for summary judgment and that it
establishes defendants named the wrong parties in their motion for
sanctions. But she provides no authority or reasoned argument to back up
her contentions, and has thus not met her burden to establish error. (See
Allen, supra, 234 Cal.App.4th at p. 52 [appellate court need not “examine
undeveloped claims or . . . supply arguments for the litigants”].)
IV. Denial of Continuance
Arnold argues additionally that the trial court abused its discretion in
not granting her request for a continuance of the hearing on the motion for
summary adjudication to allow her to obtain additional discovery.
If it appears from the papers submitted in opposition to a motion for
summary adjudication “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.” (§ 437c, subd. (h).) We review the
trial court’s ruling on a request for such a continuance for abuse of discretion.
(Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.) A
court abuses its discretion if there is a good faith showing that a continuance
is needed to obtain facts that are essential to the opposition. (Ibid.) To make
such a showing, the opposing party must provide a declaration showing “(1)
the facts to be obtained are essential to opposing the motion, (2) there is
reason to believe such facts may exist, and (3) the reasons why additional
time is needed to obtain these facts.” (Ibid.)

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 In her declaration supporting the request for a continuance, Arnold
averred there was reason to believe Garrido made misrepresentations
regarding Frazier’s past employment and future employment prospects. But
the only additional discovery she specified was the deposition of Frazier, and
she made no showing that he would be able to provide evidence to refute the
showing defendants made in their motion for summary adjudication. In
particular, Arnold’s argument on this point entirely ignores the effect on her
case of the deemed admissions. In the circumstances, the trial court did not
abuse its discretion in denying the request for a continuance.4
DISPOSITION
The judgment is affirmed.

TUCHER, P.J.

WE CONCUR:

PETROU, J.
RODRÍGUEZ, J.

Arnold et al. v. Alliance Construction et al. (A168555)

Plaintiffs make a number of other undeveloped arguments on appeal.

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Among them, they complain of the litigation tactics of defendants’ counsel,

but they make no showing either that counsel acted unethically or that the
trial court’s rulings were erroneous.