Metropolitan News-Enterprise


Friday, November 4, 2022


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Policy Favoring Decision on the Merits Didn’t Preclude Striking Late-Filed Opposition—C.A.

Summary Judgment Affirmed in Case Stemming From Extra Time

To Turn In Paper Not Being Granted to Student Nine Years Ago


By a MetNews Staff Writer


The Court of Appeal for this district has held that a Los Angeles Superior Court judge did not abuse his discretion in striking a plaintiff’s opposition to a motion for summary judgment that was filed one day before the hearing and after one extension for responding had already been granted, with the plaintiff’s lawyer providing a lame excuse for the tardiness and his failure to make a motion for a second extension.

Wednesday’s unpublished opinion comes in a case where a student’s battle with California State University, Northridge (“CSUN”) was triggered by her professor not immediately responding to an equivocal request in a late night email seeking more time to turn in a three-page paper that was due at midnight, allegedly resulting in an anxiety attack. That incident occurred more than nine years ago, with the litigation repeatedly delayed by virtue of deadlines not being met, including the appeal being dismissed, then reinstated, three times.

“In finding that the trial court acted within the scope of its discretion” in striking plaintiff Natalie Brinkley’s late filed opposition, “we are mindful of the overarching goal in our judicial system to resolve cases on their merits,” Los Angeles Superior Court Judge Michael C. Kelley, sitting on assignment to Div. One, said in his unpublished opinion, filed Wednesday.

‘Judicious Balancing’

 He continued:

“The trial judge was also fully aware of this, and his comments reflect a judicious balancing of that goal against the imperative of managing cases (as trial courts are expected to) in an efficient manner that provides all litigants with timely justice and due process and enforcing procedural rules unless there is good legal cause for not doing so.”

The trial judge was Craig D. Karlan. At the hearing on Aug. 23, 2018, Karlan afforded Brinkley’s lawyer, Michael H. Lapidus, an opportunity to explain why the opposition, due on July 31, had not been filed until the previous day and why an extension had not been sought. Lapidus responded:

“The reason—when the substantial portion was done, and it got close to the due date, we’re working in very adverse—I work in very adverse conditions, huge temperature, out-of-a-home office, no air, exhaustion—and it seemed like it was better to attempt to get it filed as close as possible rather than come in and file for further extension.”

Kelley commented that “Counsel’s reasons were not compelling.”

Karlan Quoted

He quoted Karlan as saying:

“I want all my cases, every case in my courtroom, to be decided on the merits. But there is a big due process problem when an opposition is filed the day before the hearing.”

Karlan added:

“What I thought you were going to give me some legal reason why you couldn’t get it to me sooner other than you have been working really hard. That’s not a legal excuse. The problem is the courts function with a procedure in place.”

Due process requires that opposition papers be timely filed, Karlan instructed, “so that the other side has a chance to file a reply, so the court has a chance to read the papers and make a cogent decision.”

He explained further:

“If the court were to allow this without any explanation at all that’s good cause for having filed it the day before, the courts wouldn’t function from a policy standpoint. None of us could get any work done, because we would be holding on and keeping our fingers crossed that opposition would not be filed at the last moment and we would have [n]o time to hear a reply.”

Five Years Later

In his Oct. 3, 2018 order—which came five years to the day after Brinkley’s anxiety attack, allegedly caused by her teacher not responding right away to her email—Karlan said:

“The Court previously granted Plaintiff’s request for additional time to oppose this motion on July 11, 2018. If Plaintiff needed yet additional time, Plaintiff should have brought a motion pursuant to [Code of Civil Procedure] section 437c(h); Plaintiff did not. As such, the Court strikes Plaintiff’s opposition.”

In ruling on Brinkley’s various causes of action—including one predicated on intentional infliction of emotional distress allegedly caused in part by the professor, Jennifer Thompson, not responding immediately to her Oct. 3, 2013 email—Karlan repeatedly said that evidence put forth by the defendants caused the burden to shift to the plaintiff but that she could not meet that burden in light of the opposition having been stricken.

Other causes of action were based on alleged failures to provide accommodations in light of Brinkley’s learning deficiencies, supposedly forcing her to drop her studies at CSUN.

 Kelley’s Opinion

In his opinion affirming the judgment, Kelley said that after a review of the record, “it is clear that the court acted well within its discretion” in striking the opposition, setting forth:

“The summary judgment motion filed on April 20, 2018, was not overly complex. It was predicated on 38 facts that the moving parties contended were undisputed, related to the accommodations afforded to Brinkley by CSUN and the events related to the essay-extension request and its aftermath. The lack of complexity is confirmed by Brinkley’s own late-filed opposition, which relied principally on a declaration by Brinkley herself. She also included a declaration by her counsel (which attached discovery responses) and a three-page declaration from a treating psychiatrist, who started treating Brinkley nine months after she had withdrawn from CSUN. None of these declarations presented discernable challenges to preparing and filing the opposition in a timely manner by the extended deadline set by the trial court.”

Had the entire opposition not been stricken, he said, the psychiatrist’s declaration would necessarily have been because speculation that Brinkley’s hospitalization “could have been caused by psychological causes” stemming from the non-response to her email “rather than pre-existing physical problems” was too uncertain to be admissible.

“The deadline for filing opposition papers on motions for summary judgment”—14 days before the hearing—”is generous,” Kelley remarked, “but it is also mandatory absent a showing of good cause.” He said that “[w]ithout any legal excuse for doing so, counsel chose not to take advantage of the opportunity afforded by the trial court” in awarding a second chance to meet the deadline through the initial extension “or to attempt to show good cause for yet another extension before the expiration of the new filing deadline, or even before the new hearing date.”

Accordingly, he declared, Karlan “did not abuse his discretion by denying Brinkley a third opportunity to submit timely opposition papers.”

Professor’s Response

Although Thompson did not respond on Oct. 3, 2018, to Brinkley’s email, she did so in an email on Oct. 6, saying:

“Unfortunately, I received your email too late to discuss an extension with you before the paper deadline had passed. I do not give extensions that are requested shortly before or after an assignment’s deadline.”

Brinkley shot back:

“That’s for your assistance in my sickness. Your [sic] unethical in behavior. I sent a request to civil rights for help….”

War was on. The student denominated Thompson a “bitch” in an email to her counselor in CSUN’s Disability Resources and Education Services Center and on Nov. 4, 2013, filed a police report accusing CSUN of harassment.

After withdrawing from CSUN based on medical reasons, she sued the university, as well as Thompson and other individuals employed by CSUN. In addition to complaining of the non-response to her email, she alleged inadequate accommodations in light of her disability, including a decision that rather than CSUN hiring someone to take notes for her in class, she should seek out a classmate to share notes.

No ‘Extreme’ Conduct

Addressing the cause of action for intentional infliction of emotional distress against Thompson and a CSUN counselor, Kelley said that “even taking Brinkley’s assertions at face value that she suffered extreme anxiety the night of October 3, 2013, the failure of Thompson to respond to her extension request before the midnight deadline is not conduct” that met the standard set forth by the California Supreme Court in 1991. That standard, articulated in Christensen v. Superior Court, was gaging whether conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”

Kelley concluded:

“The trial court correctly found the absence of outrageous conduct, and correctly resolved this cause of action in favor of Defendants.”

Neither Karlan nor Kelley discussed whether liability was barred by a lack of any duty by a professor to respond, with immediacy or at all, to a student’s emailed request for additional time to submit a paper, and contained no allusion to proximate cause.

Other Claims

Kelley pinpointed what he viewed as hopelessness in Brinkley’s various positions, even if the opposition had not been stricken.

His discussion included noting that Brinkley could not maintain an action under the state’s the Unruh Civil Rights Act which bans discrimination by businesses because CSUN is not a business, even though it charges a tuition. He said that Brinkley could not have prevailed against the individual defendants under the federal Americans With Disabilities Act or the federal Rehabilitation Act of 1973 because “neither of” those acts “permits a claim for relief for personal liability on the part of government employees.”

The case is Brinkley v. California State University, Northridge, B296983.

Lapidus represented Brinkley on appeal and the Office of Attorney General argued for the university and the individual defendants.


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